Rajdhar Shivram Koli vs Mrs Khatubai @ Laxmibai Rajdhar ...
2016 Latest Caselaw 5433 Bom

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




                                                                                          
                         CRIMINAL WRIT PETITION NO. 388 OF 2005     




                                                                  
    Rajdhar Shivdas Koli
    age 32 years, occ. Agril.
    r/o Tarhadkasbe, Tq. Shirpur




                                                                 
    Dist. Dhule                                                                 .. PETITIONER


    VERSUS
     




                                                  
    Sau. Khatubai @ Laxmibai Rajdhar Koli
                                 
    r/o Anturli Village,
    Tq. Shirpur
    Dist. Dhule                                                               .. RESPONDENT 
                                
    Mr.  P.S. Patil, advocate for petitioner.
    Mr. M.S. Deshmukh, advocate for respondent.
                                                          =====
      
   



                                                          CORAM :  V.K. JADHAV, J.  
                                                          DATE    :  21st SEPTEMBER,  2016. 
     

    JUDGMENT  :

Being aggrieved by the judgment and order passed by the 1 st Adhoc

Additional Sessions Judge, Dhule, dated 30th April, 2005, in Criminal

Revision Application No. 98/2001, original opponent-husband has preferred

this criminal writ petition.

2. Brief facts giving rise to the present writ petition are as follows :-

Respondent-wife has filed application under section 125 of Code of

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Criminal Procedure for grant of maintenance against petitioner-husband. It

has contended in the said application that she is the legally wedded wife

and the marriage took place in Gandharva form 4 years prior to filing of

said application for grant of maintenance. It is further stated in the

application that after the marriage for initial period, she was treated well

but thereafter she was subjected to ill-treatment on account of non-

fulfilment of unlawful demand made by petitioner-husband and his family

members. She was subjected to beating and even though she was pregnant,

for want of medical aid, her pregnancy was aborted. She was finally driven

out from the house by petitioner-husband. Since respondent-wife is

residing with her parents she has no source of income and she is unable to

maintain herself. It has also stated in the application that petitioner-

husband is working as driver on tractor and his yearly income is more than

Rs. 1,00,000/-. Thus, she is claiming grant of maintenance at the rate of

Rs.1,500/- per month.

Petitioner-husband has strongly resisted said application by filing his

say. Petitioner-husband has contended that respondent-wife is not his

legally wedded wife and she has no any right to claim maintenance from

him. Thus, petitioner-husband denied all the allegations made against him

in the said application for grant of maintenance. Both the parties adduced

their oral as well as documentary evidence in support of their rival

contentions.

Learned Judicial Magistrate, First Class, Shirpur, by order dated 28 th

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February, 2001, in Criminal M.A. No. 214/1998, rejected the application

however, granted liberty to the applicant to approach the competent Civil

Court and get declaration about validity or otherwise of the marriage and

that, in the said proceeding, she can also claim interim maintenance and

also future maintenance from petitioner-husband.

Being aggrieved by the same, respondent-wife preferred Criminal

Revision Application No. 98/2001 and the learned 1st Adhoc Additional

Sessions Judge, Dhule, by order dated 30th April, 2005, partly allowed the

revision application and quashed and set aside the order passed by the

Magistrate thereby directing the present petitioner-husband to pay Rs.300/-

per month as maintenance from the date of filing of the revision application

to the respondent-wife alongwith cost of Rs. 500/-. Hence, this writ

petition.

3. Learned counsel for petitioner-husband submits that respondent-wife

had filed said application for grant of maintenance with the averments in

the application itself that she had performed marriage with petitioner-

husband in Gandharva form. Furthermore, respondent-wife has admitted in

her cross-examination that her first husband Chabu Soma Koli and her

marriage with said Chabu Koli is still in existence. Learned counsel admits

that there is no legal divorce between respondent-wife and said Chabu Soma

Koli. It is also an admitted fact that one Chotibai is the wife of petitioner-

husband and said marriage is still subsisting. Learned counsel submits

that the Trial Court has therefore rightly recorded finding in negative and

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thereby held that the applicant failed to prove that she is legally wedded wife

of petitioner-husband. Learned counsel submits that during the pendency

of revision, for the first time, respondent-wife has produced divorce deed

before the Sessions Court and the same is accepted as additional evidence.

However, the date 01.07.1998 is mentioned on the said document. Learned

counsel submits that on 08.06.1998, respondent-wife has filed application

for grant of maintenance before the Magistrate. Thus, on the date of

application, marriage of respondent-wife with said Chabu Koli was

subsisting and therefore, it cannot be said that she is the legally wedded

wife of petitioner-husband. Learned counsel further submits that on the

basis of evidence adduced by respondent-wife even if it is assumed that

petitioner-husband was treating her as wife, the principle of estopple cannot

be pressed into service to defeat the provisions of section 125 of the Code of

Criminal Procedure and, only legally wedded wife can claim maintenance

from her husband. Learned counsel also submits that the Trial Court has

given opportunity to the respondent-wife to approach Civil Court, however,

till this date, applicant-wife has not approached the Civil Court seeking

declaration about validity or otherwise of the marriage. Learned counsel

submits that the approach of the Court is erroneous and is thus liable to be

quashed and set aside.

4. Learned counsel for petitioner, in order to substantiate his

submissions, placed reliance on following three cases :

1) Savitaben Somabhai Bhatiya Vs. State of Gujarat and others Reported in AIR 2005 Supreme Court 1809

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2) Jaishree w/o Premnath Gavandar & another Vs. State of

Maharashtra and another Reported in 2013 BCI(0) 972

3) Yamunabat Anantrao Adhav Vs. Anantrao Shivram Adhav Reported in 1988 AIR(SC) 644.

5. Learned counsel for respondent-wife submits that the voters list Exh.

45 is produced before the Trial Court and it appears that name of

respondent-wife is entered at Sr. No. 27. It transpires from said entry in the

voters list that respondent is the wife of petitioner-husband. Furthermore,

on the basis of the complaint lodged by respondent-wife, criminal case for

offence punishable under section 498A of the Indian Penal Code was

instituted against petitioner-husband and his family members and the said

case was disposed of in terms of compromise. Compromise terms are

produced before the Court vide Exh. 26. Recitals in the said compromise

deed clearly indicate that respondent is the legally wedded wife of petitioner-

husband and he had accepted her as his wife. Furthermore, divorce deed is

also produced on record and it appears from the contents of the divorce

deed that respondent-wife obtained divorce from her former husband on

01.07.1998 i.e. when Criminal M.A. No. 214/1998 was pending before the

Magistrate. Learned counsel submits that in the facts and circumstances of

the case, learned 1st Adhoc Additional Sessions Judge, Dhule has rightly

taken a view and accordingly granted maintenance at the rate of Rs.300/-

per month to respondent-wife. Learned counsel submits that no

interference is required and the writ petition is liable to be dismissed.

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6. Respondent-wife has filed Criminal M.A. No. 214/1998 for grant of

maintenance before the Magistrate with averment in the application itself

that she had performed marriage in Gandharva form with petitioner-

husband. Needless to say here that Gandharva form of marriage is nothing

but garlanding each other without performing any rite and rituals. As per

section 7 of the Hindu Marriage Act, 1955, Hindu marriage is solemnised in

accordance with the customary rites and ceremonies of either parties

thereto and, in view of sub-section 2 of section 7, when such rites and

ceremonies include the Saptapadi, the marriage becomes complete and

binding when the seventh step is taken. It is not the case of respondent-

wife that it is the custom in their community to perform marriage in

Gandharva form alone. On the other hand, the marriage is performed in

Gandharva form when the earlier marriage is subsisting. On the basis of

other evidence i.e. voters list and complaint filed under section 498A of the

Indian Penal Code, at the most it can be said that petitioner-husband was

treating the respondent as his wife. However, the scope of wife for the sake

of provisions of section 125 of the Code of Criminal Procedure cannot be

enlarged to include unlawful marriage.

7. In case of Savitaben Somabhai Bhatiya Vs. State of Gujarat and others

reported in AIR 2005 Supreme Court 1809, in paragraphs 16 and 17 the

Hon'ble Supreme court has made following observations :

16. But it does not further the case of the appellant in the instant case. Even if it is accepted as stated by learned counsel for the appellant that husband was treating her as his wife it is really

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inconsequential. It is the intention of the legislature which is relevant and not the attitude of

the party.

17. In Smt. Yamunabai's case (supra) plea

similar to the one advanced in the present case that the appellant was not informed about the respondent's earlier marriage when she married him was held to be of no avail. The principle of estoppel cannot be pressed into service to defeat

the provision of Section 125 of the Code.

8. In view of above discussion and in the light of the ration laid down by

the Supreme Court, the judgment and order passed by the learned 1 st

Adhoc Additional Sessions Judge, Dhule is liable to be quashed and set

aside. I find that the approach of the Magistrate is proper, correct, legal and

more logical. Learned Magistrate has granted opportunity to the wife to

approach the competent Civil Court and get declaration about validity or

otherwise of the marriage. Accordingly I proceed to pass the following

order :

ORDER

1. Criminal Writ Petition is hereby allowed.

2. Judgment and order passed by the 1 st Adhoc Additional Sessions Judge, Dhule dated 30 th April,

2005, in Criminal Application No. 98/2001 is hereby quashed and set aside.

3. Judgment and order passed by the Judicial Magistrate First Class, Shirpur, dated 28 th February, 2001 in Criminal M.A. No. 214/1998 stands confirmed.

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4. Rule is made absolute in above terms. Writ

petition is accordingly disposed of.

( V. K. JADHAV ) JUDGE

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