Dharmraj Dayaramji Ghodmare vs Sau Shobha Dharmraj Ghodmare And 2 … on 21 December, 2017

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

CRIMINAL REVISION APPLICATION NO.70 OF 2005

APPLICANT: Dharmraj S/o Dayaramji Ghodmare,
(Ori. aged about 45 years, Occupation:
Respondent)
Service (W.C.L.) Qr. No.8/317,
Sillewara Coal Mines, Tahsil Kamptee,
District Nagpur.

-VERSUS-

RESPONDENTS: 1. Sau. Shobha w/o Dharmraj Ghodmare,
(Ori. Petitioners) aged about 39 years, Occupation:
Household,
2. Dhiraj Dharmaraj Ghodmare, aged 19
years,
3. Ku. Pritee @ Shubhangi d/o Dharmaraj
Ghodmare, aged 17 years,
All residents of Plot No.41, C/o
Harishankar Baburaoji Barai, Umrer
Road, Nagpur.

Shri R. Dhoble, Advocate for the applicant.
Shri S. A. Lambat, Advocate for respondents.

CORAM: A.S. CHANDURKAR, J.

DATE ON WHICH SUBMISSIONS WERE HEARD: 06-12-2017.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 21-12-2017.

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ORAL JUDGMENT :

1. This Criminal Revision Application filed under Section

397 of the Code of Criminal Procedure, 1973 (for short, the Code)

takes exception to the order passed by the learned Judge, Family

Court Nagpur dated 29-3-2004 thereby allowing the application

that was filed by the non-applicant no.1 herein under Section 125

of the Code for grant of maintenance to herself and her two

children. By said order, the applicant was directed to pay

maintenance @ Rs.600/- per month to the non-applicant no.1 and

Rs.400/- each per month to the non-applicant Nos.2 and 3.

2. The facts in brief are that according to the non-

applicant no.1 she is the legally wedded wife of the applicant by

virtue of marriage dated 18-6-1984. The non-applicant no.2 was

born on 12-9-1985 and the non-applicant no.3 was born on

27-8-1987. Though the parties resided together till April 1988, the

applicant left the non-applicants at the place of the father of the

non-applicant no.1 and did not take them back. On that basis, the

application under Section 125 of the Code came to be filed on

16-5-1996.

3. In the reply filed by the applicant herein, it was denied

that he was the husband of the non-applicant no.1. The younger

sister of the non-applicant no.1 was married with a relative of the

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applicant and hence they were acquainted with each other. It was

therefore pleaded that the maintenance was not liable to be

granted by the applicant.

4. The parties led evidence before the Family Court and

by the impugned judgment it was held that the applicant and the

non-applicant no.1 were married and that the non-applicant Nos.2

and 3 were their children. Considering the earning of the

applicant he was directed to pay maintenance of total amount of

Rs.1400/- to all the non-applicants. Being aggrieved, the present

revision application has been filed.

5. Shri R. Dhoble, learned Counsel for the applicant

submitted that there were various contradictions and

inconsistencies in the case of the non-applicant no.1. The evidence

on record indicated that the non-applicant no.1 was already

pregnant when they got married on 28-6-1984 but the first child

was born on 12-9-1985 which is more than a year of the marriage.

According to the learned Counsel this fact was also deposed by the

witnesses examined by the non-applicant no.1. The cohabitation

between the parties was also not proved and no witness from the

area where it was claimed that the applicant and the non-

applicant resided together was examined. Though the applicant’s

name was Dharmaraj, the documents relied upon by the non-

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applicant no.1 showed the name as Dhanraj. The notice dated

8-6-1988 issued by the non-applicant no.1 was replied on

23-6-1988 denying the case of the non-applicant No.1. From said

date till filing of the present proceedings on 16-5-1996 no steps

were taken by the non-applicant no.1 either to cohabit with the

applicant or to seek maintenance from him. It was therefore

submitted that ignoring all relevant factors maintenance came to

be granted to the non-applicants.

6. Shri S. A. Lambat, learned Counsel for the non-

applicants supported the impugned order. He submitted that

though the name of the applicant was mentioned in various

documents which also showed the name of the non-applicant no.1,

he never raised any objection to the same. The birth certificate of

both the children indicated the name of their father as Dharmaraj.

He referred to the marriage invitation card at Exhibit-37 and

submitted that considering the entire material on record, the

award of maintenance was justified. Considering the nature of

proceedings strict proof of marriage was not warranted and

therefore, the impugned order did not call for any interference. In

support of his submissions the learned Counsel placed reliance on

the decisions in Dwarika Prasad Satpathy v. Bidyut Prava Dixit and

another AIR 1999 SC 3348 and Pyla Mutyalamma @ Satyavathi vs.

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Pyla Suri Demudu Anr. 2012 ALL MR (Cri) 712.

7. I have heard the learned Counsel for the parties at

length and I have given due consideration to their respective

submissions. The learned Judge of the Family Court after

appreciating the evidence on record has held that the applicant

and the non-applicant no.1 were married and that the non-

applicant no.1 had the status of a wife. The Court held that there

was presumption of marriage in favour of the non-applicant no.1

till appropriate declaration was sought by the applicant from the

Civil Court. In this regard, observations of the Hon’ble Supreme

Court in Pyla Mutyalamma @ Satyavathi (supra) are attracted. It

was observed thus:

“In revision against the maintenance order
passed in proceedings under Section 125,
Cr.P.C., the revisional court has no power to
re-assess evidence and substitute its own
findings. Under revisional jurisdiction, the
questions whether the applicant is a married
wife, the children are legitimate/illegitimate,
being pre-eminently questions of fact, cannot
be reopened and the revisional court cannot
substitute its own views. The High Court,
therefore, is not required in revision to
interfere with the positive finding in favour of
the marriage and patronage of a child. But
where finding is a negative one, the High
Court would entertain the revision, re-

evaluate the evidence and come to a
conclusion whether the findings or
conclusions reached by the Magistrate are
legally sustainable or not as negative finding
has evil consequences on the life of both child

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and the woman.”

Similarly, in Dwarika Prasad Satpathy (supra) the Hon’ble Supreme

Court observed thus:

“13. From the evidence which is led if the
Magistrate is prima facie satisfied with regard to
the performance of marriage in proceedings
under
Section 125, Cr.P.C. which are of
summary nature, strict proof of performance of
essential rites is not required. Either of the
parties aggrieved by the order of maintenance
under
Section 125, Cr.P.C. can approach the civil
Court for declaration of status as the order
passed under
Section 125 does not finally
determine the rights and obligations of the
parties.”

8. From the aforesaid, it can be seen that if the trial Court

in proceedings under Section 125 of the Code has prima facie

come to the conclusion that there existed a marriage between the

parties and on that basis a positive finding in favour of the

marriage and patronage of a child is recorded then in exercise of

revisional jurisdiction the High Court would be slow to interfere

with these findings. Same is not the case when a negative finding

on the aforesaid is recorded.

9. On consideration of the entire material on record, I

find that there was sufficient material brought by the non-

applicant no.1 in the form of birth certificates at Exhibits-32 and

33 as well as papers indicating medical treatment being taken by

her from the Western Coalfields Ltd. Hospital at Walni. The

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applicant despite alleged threats being given by the non-applicant

had not chosen to make any report to the police authorities.

Though there are some minor discrepancies in the evidence

brought on record by the non-applicant no.1, when the entire

material on record is taken into consideration I do not find those

contradictions to be of such nature so as to disbelieve the entire

case of the non-applicants. It is well settled that adjudication in

proceedings under Section 125 of the Code is based on

preponderance of probabilities and it is open for either party to

seek appropriate declaration from the Civil Court if any party so

desires. It is to be noted that before the trial Court the non-

applicant No.1 had moved an application for seeking permission to

adduce expert evidence so as to direct the applicant herein to give

his blood samples for determining the paternity of the children.

This application however was opposed by the applicant by stating

in clear terms that he was not ready for such medical examination.

This conduct of the applicant prima facie fortifies the case of the

non-applicant no.1 that the applicant is the father of the non-

applicant Nos.2 and 3.

10. In view of aforesaid discussion, I do not find any case

made out to exercise revisional jurisdiction in favour of the

applicant. The learned Judge of the Family Court after considering

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the entire material on record has found the non-applicants entitled

to grant of maintenance. In that view of the matter, the revision

application stands dismissed with no order as to costs. It is

clarified that this adjudication shall not come in the way of either

party if appropriate declaration as regards marital status is sought

by either of the parties.

The applicant is granted time of three months to clear

the arrears of maintenance, if any.

JUDGE

/MULEY/

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