Bombay High Court
Gokul Yashwant Gopnarayan vs Sangeeta Gokul Gopnarayan on 7 October, 2025
2025:BHC-NAG:10300
Judgment Cr.WP-942-2018
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 942 OF 2018
...
Gokul Yashwant Gopnarayan,
Aged: 50 years, Occupation: Service (Retd.),
Residing at Panchasheel Nagar,
Dhamma-Mukti, Near Boudhha Vihar, Akola,
Taluka and District: Akola.
... PETITIONER
--VERSUS--
Sangeeta Gokul Gopnarayan,
Aged: 40 years, Occupation: Household,
Residing at c/o Ramdasji Ingle,
Gram Panchayat Sonori,
Taluka: Murtizapur, District: Akola.
... RESPONDENT
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Mr. R.D. Dhande, Advocate for the Petitioner.
Mr. A.B. Mirza, Advocate for the Respondent.
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CORAM : M.M. NERLIKAR, J.
PIYUSH MAHAJAN
Judgment Cr.WP-942-2018
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Judgment is reserved on 30/09/2025 .
Judgment is pronounced on 07/10/2025 .
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Rule. Rule made returnable forthwith. Heard finally
with the consent of learned counsel for the parties.
2. The petitioner is challenging the judgment and order
dated 27/08/2018 passed by the 3rd Additional Sessions Judge,
Akola, in Criminal Revision No.97/2019 and the judgment and
order dated 25/04/2016 passed by the Judicial Magistrate First
Class, Murtizapur, in Criminal Case No.216/2010, wherein the
maintenance of Rs.4,000/- per month under Section 125 of the
Code of Criminal Procedure, 1973, was granted to the
respondent-wife herein.
3. Brief facts of the case are that:
The marriage between the petitioner and the
respondent was solemnized on 03/06/2008 at Gram Panchayat
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Sonori, Taluqa Murtizapur, District Akola. The marriage
between them is a second marriage as the first wife of the
petitioner died due to cancer, so also, the husband of
respondent, namely, Harish Goroba Shinde passed away. After
one month of marriage, the petitioner started ill-treating and
harassing the respondent, and therefore, a discord arose
between them. It is alleged that the petitioner and his son-
Rahul started abusing, harrasing and ill-treating her. The family
members of the petitioner started beating her mercilessly, and
also demanded Rs. 30,000/-. The respondents was driven out of
house, therefore she was residing with her parents.
Accordingly, on 08/12/2010, the respondent filed an
application under Section 125 of the Cr.P.C against the
petitioner bearing Miscellaneous Criminal Case No.216/2010
before the Judicial Magistrate First Class, Murtizapur. The
petitioner contested the claim filed by the respondent by filing
his Written Statement.
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4. It appears from the record that during the pendency
of the Miscellaneous Criminal Application No.216/2010, the
petitioner filed Miscellaneous Criminal Case No. 54/2012
alleging that respondent herein committed offences punishable
under Sections 420, 468, 471 read with Section 34 of the
Indian Penal Code, 1860, and also Miscellaneous Criminal Case
No.120/2012 for the offences punishable under Sections 420,
468, 471 read with Section 34 of the Indian Penal Code, 1860.
In both these cases, allegation of forgery as well as using forged
documents to avail the benefits of the Government schemes like
Scholarship for daughter is alleged. In both these cases, the
Magistrate proceeded under Section 202 of the Cr.P.C. and
those proceedings are still pending in the Competent Courts.
Even in those cases, issue process order was passed by the
respective Courts after getting the enquiry report from the
police.
5. After leading the evidence in Misc. Criminal Case
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No.216/2010, the learned Judicial Magistrate First Class was
pleased to allow the application and granted maintenance of
Rs.4,000/- to the respondent from the date of the application.
Thereafter, the petitioner preferred Criminal Revision bearing
No.97/2016. The said Criminal Revision was dismissed by the
3rd Additional Sessions Judge, Akola on 27/08/2018, and
therefore, against both these orders the petitioner has filed the
present petition.
6. I have heard the learned counsel for the petitioner as
well as the learned counsel for the respondent at length.
7. The learned counsel for the petitioner submits that
the marriage between petitioner and respondent solemnized on
03/06/2008 is not in dispute, however, he submits that the
marriage is a void marriage for the reason that the respondent
had filed false and fabricated death certificate of her earlier
husband, namely, Harish Shinde, before the Gram Panchayat,
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Sonori, where the marriage between the present petitioner and
respondent was solemnized. It is contended that when the first
marriage is in existence, the second marriage becomes void.
The present marriage is void under Section 11 of the Hindu
Marriage Act, 1955, as the condition specified in clause (I) of
Section 5 is contravened, which states that for a valid marriage,
neither party should have a spouse living at the time of
marriage. It was impressed on the petitioner by the respondent,
that the first husband was dead. Therefore, the petitioner has
performed the second marriage with the respondent. It was
also submitted that the petitioner has duly proved that the
death certificate is forged by adducing cogent evidence, and
therefore, after adducing the evidence in respect of forgery of
the death certificate, the onus is shifted on the respondent in
order to prove the fact that the husband of the respondent is
dead. He further submits that it is the respondent who has
produced the death certificate with an application before the
Secretary of the Gram Panchayat who is the Competent
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Authority under Section 6 of the Special Marriage Act, 1954,
and he is the competent officer to maintain the record, so the
onus as per Section 108 as well as Section 106 of the Indian
Evidence Act, 1872 being a special fact within the knowledge of
the respondent, is upon the respondent. Therefore, both the
Courts below have committed a grave error in ignoring the fact
and the law, and accordingly, prayed to allow the petition. So
as to substantiate the aforesaid arguments, he has relied on
following judgments- (1) Yamunabai Anantrao Adhav VS
Anantrao Shivram Adhav, (1988) 1 SCC 530, (2) Savitaben
Somabhai Bhatiya VS. State of Gujrat and Others, AIR 2005 SC
1809, (3) Vimala (K.) VS Veeraswamy (K.) (1991) 2 SCC 375,
(4) D. Velusamy VS D. Patchaiammal (2010) 10 SCC 469, (5)
Indu Nimba Pawar VS Sou Sumanbai Kadu Pawar and Others
1996 (3) Bom.C.R. 606, (6) Atmaram Tukaram Suradkar VS
Trivenibai Atmaram Suradkar, 2005 All M.R.(Cri.) 1177, (7)
N.Jayalakshmi Ammal and Another VS R. Gopala Pathar and
Another, AIR 1995 SC 995, (8) Bajirao Raghoba Tambre VS
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Tolanbai (Miss) d/o Bhagwan Toge and Another, 1979
Bom.C.R. 545, (9) L.I.C. of India VS Anuradha, AIR 2004 SC
2070, (10) Bhanumati Dayaram Mhatre VS Life Insurance
Corporation of India, 2008 (6) Bom.C.R. 311, (11) Smt.
Yamunabai Anantrao Adhav VS. Anantrao Shivaram Adhav, AIR
1988 SC 644, (12) Savitaben Somabhai Bhatiya VS State of
Gujrat and Others, AIR 2005 SC 1809.
8. On the other hand, the learned counsel for the
respondent submits that the respondent has not committed any
forgery and in order to avoid paying the maintenance, the
petitioner has taken a false plea. He further submits that the
marriage between the present petitioner and the respondent is
solemnized and there is no dispute that the respondent is a
legally wedded wife of the petitioner. The claim of the
respondent cannot be denied only on the basis of the so called
forged death certificate of her earlier husband-Harish and the
burden as per Section 101 of the Indian Evidence Act which
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states that a person who asserts existence of any fact must
prove that those facts exists is on the petitioner to prove that
the death certificate is forged one. The petitioner has utterly
failed to prove that the husband of the petitioner is alive, and
that earlier marriage is in existence. In the absence of legal
evidence, the subsistence of first marriage cannot be accepted
and the onus is on the petitioner. In the absence of these two
important factors, the claim of the petitioner in respect of
maintenance is intact. He further submits that the petitioner in
order to harass the respondent has filed Civil and Criminal
cases against her and though the criminal as well as civil cases
were filed long back in the year 2010 and 2012, still the
petitioner is not able to conclude those proceedings, and
therefore, in the absence of the finding in those cases, merely
on the contentions of the petitioner, maintenance cannot be
denied. So as to substantiate his contentions he has placed
reliance on following judgments- (1) Smt. Shiramabai W/o
Pundalik Bhave VS The Captain, Record Officer for O.I.C.
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Records, 2023 0 Supreme(SC) 772 and (2) Smt. N. Usha Rani
and Another Vs Moodudula Srinivas, 2025 0 Supreme(SC) 271.
9. Upon considering the rival submission of the parties
and after perusing the impugned orders as well as the evidence
placed on record, it appears that the marriage between the
petitioner and the respondent was solemnised on 03/06/2008
and it is their second marriage. It appears from the record that
in order to substantiate the case of the respondent-wife, has led
her evidence at Exh.-12 by filing her affidavit-in-chief and has
relied on the registered marriage certificate at Exh.-52 and
extract of marriage register at Exh.-53. On the other hand, the
petitioner-husband has amongst other documents relied on the
death certificate of Harish Shinde at Exh.-90.
10. It is necessary to reproduce relevant part of Section
125 of the Code of Criminal Procedure, 1973 :-
"125. Order for maintenance of wives, children and
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parents.- (1) If any person having sufficient means neglects
or refuses to maintain--
(a) his wife, unable to maintain herself, or.......
Explanation--For the purposes of this Chapter--
....(b) "wife" includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not
remarried."
So far as the proceedings under Section 125 of
Cr.P.C. is concerned, the important ingredients which are to be
satisfied for grant of maintenance to wife are that (i) A person
having sufficient means (ii) neglects or refuses to maintain, and
(iii) who is unable to maintain herself.
11. If the present case is considered, the respondent filed
an application under Section 125 of the Code of Criminal
Procedure for grant of maintenance on the ground that she is
wife, unable to maintain herself and the petitioner is having
sufficient means, and accordingly, prayed to grant maintenance
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Judgment Cr.WP-942-2018
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of Rs.5,000/- per month from the date of application as the
petitioner is getting salary of Rs.17,000/- to Rs.20,000/- per
month.
12. It further appears that both the parties have led their
evidence and much emphasis was placed at Exh.-90 Death
certificate of Harish Shinde. The said document was placed on
record by the petitioner. However, while conducting the cross-
examination of witness No.2- Ravindra on behalf of the
petitioner, it was tried to brought on record that death
certificate was forged one. According to witness-Ravindra,
there is no entry in the birth and death register of Harish
Shinde. Before the police he has stated that the said death
certificate is forged.
13. Even presuming the fact that the death certificate is
forged, that by itself would not be sufficient to deny the claim
of the respondent. In the entire evidence, it was not brought on
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record by the petitioner that the earlier marriage is still in
existence or subsisting, and therefore, the marriage is void.
Without dwelling much on this aspect, it is necessary to
consider Section 101 of the Indian Evidence Act, which states
that a person who asserts existence of a fact must prove those
facts. Here, the petitioner has failed to prove the existence of
earlier marriage, and therefore, it cannot be said that the
marriage between the petitioner and the respondent is void.
However, even presuming that for the sake of discussion the
marriage between the petitioner and the respondent is void,
still the respondent is entitled to claim maintenance under
Section 125 of the Cr.P.C. Section 125 of the Cr.P.C. as was in
the words of Justice Krishna Iyer in Captain Ramesh Chander
Kaushal VS. Veena Kaushal and Others (1978) 4 SCC 70 "This
provision is a measure of social justice and specially enacted to
protect women and children and falls within the constitutional
sweep of Article 15(3) reinforced by Article 39. We have no
doubt that sections of statutes calling for construction by courts
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are not petrified print but vibrant words with social functions to
fulfil. The brooding presence of the constitutional empathy for
the weaker sections like women and children must inform
interpretation if it has to have social relevance. So viewed, it is
possible to be selective in picking out that interpretation out of
two alternatives which advance the cause -- the cause of the
derelicts."
14. Further in the case of Vimala (K) vs. Veeraswamy
(K) (1991) 2 SCC 375, the Supreme Court in Paragraph No.3 as
under:
" Section 125 of the Code of Criminal Procedure is
meant to achieve a social purpose. The object is to prevent
vagrancy and destitution. It provides a speedy remedy for the
supply of food, clothing and shelter to the deserted wife.
When an attempt is made by the husband to negative the
claim of the neglected wife depicting her as a kept-mistress
on the specious plea that he was already married, the court
would insist on strict proof of the earlier marriage. The term
'wife' in Section 125 of the Code of Criminal Procedure,
includes a woman who has been divorced by a husband or
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who has obtained a divorce from her husband and has not
remarried. The woman not having the legal status of a wife is
thus brought within the inclusive definition of the term 'wife'
consistent with the objective. However, under the law a
second wife whose marriage is void on account of the
survival of the first marriage is not a legally wedded wife and
is, therefore, not entitled to maintenance under this
provision. Therefore, the law which disentitles the second
wife from receiving maintenance from her husband under
Section 125, CrPC, for the sole reason that the marriage
ceremony though performed in the customary form lacks
legal sanctity can be applied only when the husband
satisfactorily proves the subsistence of a legal and valid
marriage particularly when the provision in the Code is a
measure of social justice intended to protect women and
children. We are unable to find that the respondent herein
has discharged the heavy burden by tendering strict proof of
the fact in issue. The High Court failed to consider the
standard of proof required and has proceeded on no evidence
whatsoever in determining the question against the
appellant. We are, therefore, unable to agree that the
appellant is not entitled to maintenance."
15. While considering both these judgments, the
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Supreme Court in the latest Judgment in the case of Smt. N.
Usha Rani and Anr. VS Moodudula Srinivas, 2025 0
Supreme(SC) 271 in Paragraph No.10, while considering the
issue whether a woman is entitled to claim maintenance u/s.
125 CrPC from her second husband while her first marriage is
allegedly legally subsisting has given a positive finding after
considering various judgments, and accordingly, the appeal was
allowed. The following observations in Smt. N. Usha Rani
(supra), are important which touches the aspect of 'Social
Justice'. Paragraph Nos. 17 and 18 are reproduced below:-
" 17. This encapsulates the full scope and gravity of
considerations before this Court as we deliberate on the issue
at hand. The present case does not concern a live-in
relationship. The Family Court made a factual finding that
Appellant No. 1 married the Respondent and that finding is
not disputed by the Respondent. Instead, the Respondent
seeks to defeat the right to maintenance by claiming that his
marriage to Appellant No. 1 is void ab initio as her first
marriage is still subsisting. Two other pertinent facts must be
considered: firstly, it is not the case of the Respondent that
the truth was concealed from him. In fact, the Family Court
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makes a specific finding that Respondent was fully aware of
the first marriage of the Appellant No. 1. Therefore,
Respondent knowingly entered into a marriage with
Appellant No. 1 not once, but twice. Secondly, Appellant No.
1 places before this Court an MoU of separation with her first
husband. While this is not a legal decree of divorce, it also
emerges from this document and other evidence that the
parties have dissolved their ties, they have been living
separately and Appellant No. 1 is not deriving maintenance
from her first husband. Therefore, barring the absence of a
legal decree, Appellant No. 1 is de facto separated from her
first husband and is not deriving any rights and entitlements
as a consequence of that marriage.
18. In the opinion of this Court, when the social
justice objective of maintenance u/s. 125CrPC is considered
against the particular facts and circumstances of this case, we
cannot, in good conscience, deny maintenance to Appellant
No. 1. It is settled law that social welfare provisions must be
subjected to an expansive and beneficial construction and
this understanding has been extended to maintenance since
Ramesh Chander (supra). An alternate interpretation would
not only explicitly defeat the purpose of the provision by
permitting vagrancy and destitution, but would also give
legal sanction to the actions of the Respondent in knowingly
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entering into a marriage with Appellant No.1, availing its
privileges but escaping its consequent duties and obligations.
The only conceivable mischief that could arise in permitting a
beneficial interpretation is that the Appellant No.1 could
claim dual maintenance--however, that is not the case under
the present facts. We are aware that this Court has previously
denied maintenance in cases of subsisting marriages (See
Yamunabai (supra) and Bakulabai (supra)). However, a plea
of separation from the first marriage was not made in those
cases and hence, they are factually distinguishable. It must be
borne in mind that the right to maintenance u/s. 125 CrPC is
not a benefit received by a wife but rather a legal and moral
duty owed by the husband. "
16. Insofar as the present petition is concerned, the facts
as crystallised are that the witness No.1 who is the wife and
witness-Ravindra Rathod who is the Secretary of Gram
Panchayat, Sonori, in whose presence marriage between
petitioner and respondent took place, specifically deposed that
on 03/06/2008 marriage between petitioner and respondent
was solemnized at about 10:00 a.m. Therefore, one fact is clear
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that marriage between them was solemnized. The respondent
also proved that she is unable to maintain herself, and
therefore, she has filed an application under Section 125 of the
Cr.P.C. It is further brought on record that the petitioner is
having sufficient means. Accordingly, for grant of maintenance,
the petitioner has duly proved the ingredients provided under
Section 125 of the Cr.P.C. Insofar as other issues are
concerned, petitioner has utterly failed to bring on record that
the marriage between the respondent and Harish who is her
earlier husband is still in existence. Merely saying that the
death certificate of deceased-Harish is forged would not lead to
a conclusion that Harish is alive.
17. It would be necessary to mention at this juncture that
petitioner has filed as many as two cases against the
respondent, wherein the issue of forged death certificate of
Harish is involved, which are still pending though more than
10-15 years have elapsed. Therefore, I refrain myself from
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giving any finding in respect of the death certificate at Exh.-90.
It would also be necessary to mention that Regular Civil Suit
No.336/2017 was also filed by the petitioner seeking
declaration and injunction to hold and declare that the
marriage certificate dated 03/06/2008 issued by the Secretary,
Gram Panchayat is illegal and arbitrary and further prayer was
made to refrain respondent from using the name of the
petitioner, even this suit is still pending. Therefore, only
question I have considered is whether the respondent is entitled
for maintenance amount under Section 125 of Cr.P.C. and
whether the Courts below have committed any error in granting
the maintenance to the respondent herein.
18. From the above discussions and the law laid down by
the Supreme Court in the case of Smt. N. Usha Rani (supra),
while considering the scope of 'wife' under Section 125 of
Cr.P.C., the Supreme Court invoking its social justice
prerogatives, affirmed that a second wife could claim
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maintenance under Section 125 Cr.P.C. even if her first
marriage is subsisting. Therefore, it is crystal clear that the
respondent is entitled for the maintenance. Both the Courts
concurrently held that respondent-wife is entitled for
maintenance. This finding of fact cannot be disturbed unless
the contrary is brought on record. The reliance placed by the
petitioner on Sections 106, 107 and 108 of the Indian Evidence
Act is misplaced and does not require detailed finding in the
present facts and circumstances of the case. It is further to be
noted that the petitioner has relied on many judgments as
stated supra. However, in all those judgments, the facts are
different or the law which is discussed does not have any
bearing on the present petition, and therefore, those judgments
are not applicable to the fact situation of the present case. So
far as maintenance proceedings under Section 125 Cr.P.C. are
concerned, the parameters are different. It is solace to a
destitute woman who is praying for grant of maintenance.
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19. Therefore, considering the above facts and
circumstances, there is no merit in the petition. Hence, the
following order:-
ORDER
(i) The Criminal Writ Petition is dismissed.
(ii) Rule stands discharged.
[ M. M. NERLIKAR, J ]
PIYUSH MAHAJAN
