Mrs. Sunita W/O. Suresh Pantawane vs Shri. Suresh S/O. Keshavrao ...
2021 Latest Caselaw 15022 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR.

                   FAMILY COURT APPEAL NO.11 OF 2019



  Mrs. Sunita W/o Suresh Pantawane,
  aged about 47 years,
  Occupation: Household,
  Resident of N.I.T. Colony,
  Near Kasturba Nagar
  Nagpur (On R.A.)             ...APPELLANT/ORIGINAL PETITIONER




                                // VERSUS //



  Shri Suresh S/o Keshavrao Pantawane,
  aged about 66 years,
  Occupation : Private,
  resident of Barse Nagar,
  Pachpaoli, NAGPUR (ON R.A.) ..RESPONDENT/ORIGINAL RESPONDENT


  Smt. S.P. Deshpande, Advocate for the appellant
  None for the respondent.
  _________________________________________________________________



  CORAM : A.S. CHANDURKAR AND G. A. SANAP, JJ.

Date on which arguments were heard:- 07/10/2021

Date on which the judgment is pronounced:- 14/10/2021

JUDGMENT: (Per: G.A. Sanap, J.)

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1. In this appeal, filed under Section 19 of the Family

Courts Act, 1984, the appellant/original petitioner has

challenged the judgment and order dated 16 th January, 2012

passed by the Principal Judge, Family Court, Nagpur, whereby

the learned Judge of the Family Court dismissed the petition

No.A/395/2009 seeking the decree of restitution of conjugal

rights and petition No.E/29/2009 seeking maintenance from the

respondent under Section 125 of the Code of Criminal Procedure

filed by the appellant.

2. The facts leading to this case are as follows:-

According to the appellant, the marriage between her and

respondent took place on 16th August, 2003 at Dikshabhoomi,

Nagpur as per their customs and rites. After marriage they

resided together as husband and wife. The appellant and

respondent wanted a child and therefore, respondent took

medical treatment from Medical Collage Hospital, Nagpur, Indira

Gandhi Medical Collage and Hospital Nagpur, Meyo Hospital,

Nagpur and Tamaskar Test Tube Baby Centre, Ramdaspeth,

Nagpur. Appellant always accompanied the respondent to the

Hospital.

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3. It is the allegation of the appellant that the

respondent suppressed his first marriage with Chandrakala from

her. It is stated that when the appellant came to know about it,

she insisted the respondent to divorce his first wife. The

respondent, therefore, filed a petition for divorce and they

obtained divorce decree by mutual consent on 20 th August,

2008. It is the case of the appellant that they lived together as

husband and wife. In October, 2008, the respondent demanded

Rs.50,000/- from the appellant. The respondent left the

appellant when she refused to pay the money. The appellant

took search of the respondent. The appellant found him at the

house of his relative at Barse Nagar. The respondent and his

relatives beat her when she went there. The respondent left her

company without reasonable cause. The respondent failed to

maintain the appellant. According to the appellant, she being the

legally wedded wife of the respondent, the respondent is bound

to maintain her. On this averments, the appellant prayed for

decree of restitution of conjugal rights in the Petition

No.A/395/2009 and order of maintenance against the

respondent under Section 125 of the Criminal Procedure Code in

Petition No.E/29/2009.

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4. The respondent contested both the petitions by filing

written statement/reply. He opposed the claim of the appellant.

He denied the factum of marriage. It is the case of the

respondent that he has no concerned, whatsoever nature with

the appellant. He has denied that the appellant is his legally

wedded wife. According to him, the allegations made by the

appellant are false and frivolous. The appellant wanted to grab

the property of the respondent and lead luxurious life with the

respondent and therefore concocted this false case. The

respondent was married with one Chandrakala in the year 1990.

There was difference of opinion, due to thinking behaviour and

attitude between the respondent and his wife Chandrakala.

There used to be quarrels' between them. He, therefore, filed a

petition for divorce. The respondent and his wife decided

mutually to dissolve their marriage. On the basis of consent

terms filed by them, the marriage was dissolved by decree of

divorce dated 13th January, 2009. It is contended that the

respondent is highly educated. He is running and managing the

school near Kanji house, Nagpur. He is reputed person in the

society. He is associated with many social organizations. It is

contended that taking the advantage of the situation and

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particularly having an evil eye on his property the appellant

concocted the story. The appellant extended threats to involve

him in criminal case. She tried to burn herself in front of the

house of the respondent. According to him, the appellant is not

entitled to get either the decree of restitution of conjugal rights

or the order for maintenance.

5. The appellant examined herself to substantiate her

claim. She examined four witnesses. The respondent filed the

affidavit in lieu of examination-in-chief. However, he did not

turn up to face the cross examination. The learned Judge of the

Family Court after considering the oral and documentary

evidence adduced by the appellant recorded a finding that the

appellant has failed to prove that she is legally wedded wife of

the respondent. The learned Judge of the Family Court further

held that in any case the marriage of the appellant with the

respondent would be null and void inasmuch as the first

marriage of the respondent with Chandrakala was subsisting.

The learned Judge of the Family Court ultimately dismissed the

petition for restitution of conjugal rights as well as the

application for maintenance.

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6. Being aggrieved by the judgment and order passed by

the learned Judge of the Family Court, the appellant is before

this Court. The appellant has challenged the judgment and order

by pleading multiple grounds in the memo of appeal. According

to the appellant, the learned Judge has failed to consider the

evidence adduced by her in proper perspective and as such came

to a wrong conclusion.

7. We have heard the learned Advocate for the

appellant. None appeared for the respondent. We have gone

through the record and proceedings.

8. Smt. S.P. Deshpande, learned Advocate for the

appellant submitted that the learned Judge has not recorded

cogent reasons for discarding the evidence of the appellant and

her witnesses on the point of her marriage with the respondent.

The learned Advocate submitted that the oral and documentary

evidence adduced by the appellant is sufficient to accept the

case on the point of her marriage with respondent as well as on

the point of grant of maintenance. The learned Advocate further

submitted that the oral and documentary evidence is sufficient to

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prove that the appellant and respondent lived together as

husband and wife for long period of time and therefore, the

learned Judge of the Family Court ought to have drawn the

presumption that they got married and therefore, they lived

together. The learned Advocate submitted that since the

appellant has proved that she and respondent lived together as

husband and wife, the learned Judge of the Family Court ought

to have awarded maintenance to the appellant. The learned

Advocate submitted that on the aforesaid grounds the judgment

and order passed by the learned Judge of the Family Court,

Nagpur is required to be set aside.

9. We have gone through the record and proceedings

and particularly the judgment and order passed by the learned

Judge of the Family Court, Nagpur. Perusal of the judgment of

the learned Judge of the Family Court would show that the

learned Judge has rejected the case of the appellant on both the

counts. In order to satisfy us about the correctness or otherwise

of the judgment of the learned Judge of the Family Court, we

have minutely perused the oral and documentary evidence

adduced by the appellant. At the threshold, it is necessary to

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mention that the appellant in her evidence has produced on

record the divorce decree between the respondent and his wife

Smt. Chandrakala dated 13th January, 2009. In oral evidence, the

appellant has admitted that on the date of her so called marriage

on 16th August, 2003 the marriage of the respondent with

Chandrakala was subsisting. The appellant has deposed that

before her marriage with the respondent, the respondent had

concealed this fact from her. The learned Judge of the Family

Court on the basis of the evidence was not convinced to accept

this contention of the appellant. On re-appreciation of the

evidence, we do not find any reason to interfere with this finding

of fact recorded by the learned Judge of the Family Court. Even

if, it is assumed for the sake of argument that the appellant had

been kept in dark about the first marriage of the respondent

with Chandrakala in the year 1990, on proof of the said fact, the

contention of the appellant that she is legally wedded wife of the

respondent cannot be accepted. The appellant has examined

herself and four other witnesses to substantiate her contention

that she got married with respondent on 16 th August, 2003 at

Dikshabhoomi, Nagpur as per their customs. This contention needs

to be examined to answer other questions involved in the appeal.

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10. It is the case of the appellant that she was a social

worker and as a social worker, she came into contact with the

respondent. According to her, the respondent, proposed her.

The respondent had denied the factum of marriage as well as

suppression of his first marriage. On the point of solemnization

of the marriage of the appellant with respondent the evidence of

the appellant and two so called eye witnesses is not at all

believable. In cross examination, she has admitted that she does

not know the name of the Bhante who performed their marriage

at Dikshabhumi, Nagpur. She has admitted that the marriage

certificate was not issued. She has categorically stated that after

marriage they signed the register of marriage kept in Bhuddha

Vihar at Dikshabhumi, Nagpur. The appellant has not produced

the copy of the said register on record. In her cross examination,

she has categorically admitted that she knew about the marriage

of the respondent with Chandrakala 8 to 10 years ago. In our

opinion, this admission would reflect upon the conduct on the

very foundation of the case of the appellant.

11. The other witnesses examined by the appellant to

substantiate the factum of marriage are not reliable. On material

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points there are inconsistencies in their evidence. The witness

Shahid Khan has admitted that he is friend of the brother of the

appellant. He has stated that he has no knowledge about the

signatures made in the register by the appellant and the

respondent. He has admitted that he does not know the name of

Bhante. Smt. Lata w/o Ramesh Nikose (PW-2) has stated that

10 to 20 people had attended the marriage. This statement is

contrary to the statement of the appellant. The appellant has

stated that only 4 to 5 persons had attended the marriage. On

minute scrutiny of the evidence, we are of the opinion that the

same does not inspire confidence on the factum of the marriage

of the appellant with the respondent.

12. It is pertinent to mention that appellant could have

obtained the marriage certificate as well as register where they

made signature after the marriage at Dikshabhoomi, Nagpur.

The appellant has not placed on record any plausible explanation

for not undertaking this exercise. It is a common knowledge that

if the marriage had been solemnized as stated by the appellant at

Dikshabhoomi, Nagpur entry of the same would have been made

in the register as well as certificate of the marriage would have

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been issued. On this point the adverse inference can be drawn

against the appellant.

13. The appellant has relied upon the wedding card. It is

seen that the learned Judge of the Family Court exhibited this

wedding card without recording the reasons, inasmuch as the

same would be the secondary evidence. Besides, the appellant

has admitted that no wedding cards were printed on her side. It

is pertinent to note that if the marriage between the appellant

and the respondent was a secrete act between them in the

background of the first marriage of the respondent with

Chandrakala, the respondent would not have printed the

marriage cards. The appellant has relied upon one more

document styled as gift deed of his property by the respondent in

favour of the appellant. The learned Judge of the Family Court

has exhibited this document. According to law, the gift deed of

immovable property is compulsorily required to be registered.

The learned Judge of the Family Court even did not bother to

impound this document due to the non payment of the proper

stamp. Be that as it may, the oral and documentary evidence is

not sufficient to accept the case of the appellant to prove that she

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got married with the respondent on 16th August, 2003.

14. It is further pertinent to note that oral and

documentary evidence is not sufficient to accept the case of the

appellant that she and the respondent lived together as husband

and wife for five to six years. On the basis of the evidence on

record, this contention of the appellant cannot be accepted. The

respondent has specifically pleaded that keeping an evil eye on

his property the appellant tried to blackmail him. In view of this

candid defence, the appellant was required to adduce cogent and

concrete evidence. It is further pertinent to mention that if they

had lived together as stated by the appellant, there would have

been ample documentary evidence. Such evidence is not forth

coming. The learned Judge of the Family Court has not accepted

the case of the appellant on both the counts. On fresh

appreciation of the oral and documentary evidence we fully

agree with the learned Judge of the Family Court. On the basis of

the available evidence, a conclusion other than the one recorded

by the learned Judge of the Family Court is not possible.

15. At the time of argument, the learned Advocate

appearing for the appellant in all fairness brought to our notice

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the judgment and order passed by the learned Principal Judge of

the Family Court, Nagpur in petition bearing No.A-233/2012

filed by the appellant dated 29 th December, 2014. The said

petition was filed by the appellant under Section 11(5) (1) read

with Section 25 of the Hindu Marriage Act, 1955 seeking

declaration that the marriage between her and respondent dated

16th August, 2003 was null and void. In the said proceeding, the

learned Judge recorded a candid finding that the appellant had

failed to prove her marriage with the respondent. It is, therefore,

apparent on the face of record that in this proceeding the learned

Judge of the Family Court and in the said petition filed in the

year 2012, the learned Judge of the Family Court recorded a

finding that the appellant is not legally wedded wife of the

respondent. In the petition No.A-233/2012 the prayer made by

the appellant for maintenance under Section 25 of the Hindu

Marriage Act was also dismissed. On going through the record

and proceeding, we conclude that no fault could be found with

the judgment of the learned Judge of the Family Court in this

proceeding rejecting the decree for restitution of conjugal rights

as well as for rejection of application for maintenance under

Section 125 of the Criminal Procedure Code.

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16. The learned Advocate for the appellant relying upon

the following three judgments submitted that even if the

marriage is found to be null and void, the order of maintenance

to the second wife cannot be denied. Similarly the learned

Advocate submitted that it has been held in these judgments that

if there is evidence to prove that parties have lived together as

husband and wife for a long period then the women cannot be

denied maintenance under Section 125 of the Cr.P.C. In the case

of Badshah Vs. Sou. Urmila Badshah Godse and another reported

in 2013 LawSuit (SC) 960 the Hon'ble Supreme Court has held

that bigamous marriages are illegal as per the provisions of law

but they are not immoral hence a financially dependent women

cannot be denied maintenance, on the ground of being a second

wife. In this case, it was proved that the wife and husband lived

together and a female child was born in the wedlock to them. In

the case of Chanmuniya Vs Virendra Kumar Singh Kushwaha &

Anr. reported in 2010 LawSuit (SC) 687, in view of the

judgments, in the case of Yamunabai Anantrao Adhav Vs.

Anantrao Shivram Adhav and another, 1988 AIR(SC) 644 and

Savitaben Somabhat Bhatia Vs. State of Gujarat and others, 2005

AIR (SC) 1809 the learned Division Bench of the Supreme

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Court has referred the matter to a larger Bench on the question

whether a man and woman living together for long time even

without a valid marriage to raise the presumption of valid

marriage entitling such a woman to maintenance.

17. In the case of Rameshchandra Daga Vs. Rameshwari

Rameshchandra Daga reported in 2004 LawSuit (SC) 1499 the

respondent had married with the petitioner during the

subsistence of her marriage. The decree declaring her second

marriage as null and void was upheld by the Hon'ble Supreme

Court. However, the decree granted in favour of the respondent

awarding the maintenance under Section 25 of the Hindu

Marriage Act, 1955 was upheld. In this case the Hon'ble

Supreme Court has held that in Section 25 the legislature has

used such wide expression as at the time of passing of any

decree, it encompasses within the expression all kinds of decrees

such as restitution of conjugal rights under Section 9, judicial

separation under Section 10, declaring marriage as null and void

under Section 11, annulment of marriage as voidable under

Section 12 and divorce under Section 13 of the Hindu Marriage

Act. It is held that at the time of the passing of any decree the

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right of maintenance under Section 25 of the Hindu Marriage Act

cannot be denied to the woman.

18. In our opinion, on the basis of the proposition of law

laid down in the judgments cited supra the submissions

advanced on behalf of the appellant cannot be accepted. In this

case the petition filed by the appellant for restitution of conjugal

rights has been dismissed. Similarly the application made by the

appellant seeking maintenance under Section 125 of the Cr.P.C.

has been dismissed. The decree was denied because the

appellant failed to establish the marriage with the respondent

and also on the ground that the so called marriage was null and

void inasmuch as the first marriage of the respondent with

Chandrakala was subsisting. It has come on record that the

petition No.A/395/2009 filed by the appellant seeking a decree

of declaration declaring her marriage with the respondent as null

and void was dismissed vide order dated 16 th January, 2012.

Similarly the prayer made in this petition seeking the decree for

maintenance under Section 25 of the Hindu Marriage Act, 1955

was also rejected. Learned Advocate for the appellant in all

fairness submitted that the appeal filed by the appellant against

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this judgment and order was withdrawn by the appellant.

19. In the facts and circumstances, we conclude that

there is no decree of any nature passed in favour of the appellant

under the Hindu Marriage Act and therefore, there would be no

question of awarding maintenance to her under Section 25 based

on the proposition laid down in the judgments cited supra.

20. Before parting with the matter, we place on record

our appreciation for the sincere efforts and assistance rendered

to the Court by Smt. S.P. Deshpande, learned Advocate who has

been appointed by the High Court Legal Aid Services Sub

Committee, Nagpur.

21. In our view, there is no substance in the appeal. The

appeal, therefore, deserves to be dismissed.

22. In view of the above, we proceed to pass following

order:-

ORDER

(i) The appeal stands dismissed. Pending civil application

is also disposed of.

  (ii)            Parties to bear their own costs.





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            (iii)           The legal fees payable to Smt. S.P. Deshpande,

learned Advocate is quantified at Rs.5,000/- and which shall be

paid by High Court Legal Aid Services Sub Committee, Nagpur.

                                JUDGE                        JUDGE

manisha