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

CRIMINAL APPLICATION (APL) NO. 83 OF 2011

Bhaurao s/o Babanrao Telgote
Aged about 54 yrs, Occ. Service,
R/o Telegraph Office, Akola
Dist.Akola .. APPLICANT
…VERSUS…

Ramabai w/o Bahurao Telgote
Aged about 37 yrs, Occ. Household
R/o Congress Nagar, Tathagat Apartment,
Akola, Dist.Akola. .. NON-APPLICANT

———————————————————————————————–
Shri H.D.Futane Advocate for the applicant.
Shri.R.J.Mirza, Advocate for the non-applicant.
———————————————————————————————–
CORAM : V. M. DESHPANDE, J.
DATE : February 13, 2018
ORAL JUDGMENT :

1. Heard Shri. H.D. Futane, the learned counsel for the

applicant and Shri.R.J. Mirza, the learned counsel for the non-

applicant.

2. The applicant has challenged the judgment and order

passed by the Additional Sessions Judge-3, Akola dated 4.12.2010 in

Criminal Revision No.29 of 2009 by which the learned Revisional

Court allowed the revision filed on behalf of the non- applicant and

directed the applicant to pay monthly allowance at the rate of

Rs.2,500/- from the date of the petition.

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3. For the sake of convenience, the parties herein will be

referred as ‘Husband’ and ‘Wife’.

4. The wife filed an application under Section 125 of the

Code of Criminal Procedure for maintenance. The said application

was registered as Criminal Case No.262 of 2006. As per the wife, her

first marriage took place in the year 1991 with Shyam Yeshwant

Salvey. From the said wedlock she had two daughters and one son.

Her husband Shyam Yeshwant Salvey was suffering from

Tuberculosis and ultimately he expired on 16.8.2003. Thereafter,

she alongwith her minor children started residing at Akot File with

her mother.

5. It is also stated by the wife that she is having one elder

brother Bandu. Bandu is the friend of husband. Husband used to

come to meet him and thereby came in contact with the wife. It is

also stated by the husband that he took divorce from his first wife

Pramilabai on 13.1.2003 and shown the necessary documents.

Relying on the said statement, marriage of the wife took place with

the husband on 26.4.2004 in presence of various relatives. It is also

stated that thereafter, she started residing with the husband and for

first two years she was nicely treated when they were residing in a

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flat at Tathagat Apartment. However, subsequently, he started

causing harassment to the wife. It is also stated that he left the flat

and kept the wife in lurch. It is also stated in the application that the

name of the wife was entered in the Ration Card, Bank Account,

Voter List and Election Card in which she was shown as the wife of

the husband and therefore she claimed maintenance.

6. The application was contested by the husband. According

to the written statement, in the year 1982 he has married with one

Pramilabai. However, from the year 2004 his relations with

Pramilabai got strained and therefore he started residing alone in

the Tathagat Apartment. It is also stated in the written statement

that after one year, there was compromise between him and

Pramilabai and they started residing jointly. It is also stated that as

false case was lodged against him. After the pleadings were over,

parties went to trial. The learned Magistrate vide order dated

7.1.2009 dismissed the application.

7. Feeling aggrieved thereby, the wife preferred Criminal

Revision No.29 of 2009 which is allowed by the impugned order.

Hence, this application.

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8. Shri.H.D. Futane, the learned counsel for the husband

submits that his marriage with Pramilabai was already preformed

and therefore, the present non-applicant is not entitled to claim any

maintenance.

9. It is to be noted that in the written statement itself

applicant/husband has stated that in the year 2004 there was a

matrimonial discord between him and his wife Pramilabai and he

started residing alone in Tathagat Apartment. In the written

statement itself it is stated that during that time, the present non-

applicant came in his contact and demanded some household work

and looking to her condition he permitted the present non- applicant

to perform his household work. Thus, it is clear from the written

statement itself that the wife was not unknown to him. In that behalf

as per the claim of the wife in the year 2004, itself marriage took

place as per ”Gandharwa Paddhati” which is a recognized form of

marriage and in the said form of marriage the bride and bride groom

exchange only garlands. What is further important to note is that

though in the written statement it is stated by the husband that

subsequent to the matrimonial discord between him and his first

wife Pramilabai has settled and they were residing jointly. Thus, it

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was well within the command of the applicant/husband to examine

Pramilabai as his witness to show and prove that their marriage is

still subsisting. However, for the reasons best known to the husband

he did not examine Pramilabai therefore, an adverse inference is

required to be drawn against applicant/husband. In Vimla (K)-Vs.

Veeraswami (K) reported in (1991) 2 SCC 375 Hon’ble Apex Court

has ruled that when a plea of subsisting marriage is raised by

husband it has to be proved satisfactorily by tendering evidence. In

the present case though such plea is taken by the husband he failed

to prove the same.

10. The learned Revisional Court has correctly appreciated

the fact that the name of the non applicant is shown as wife and of

applicant in Ration Card, Voter List and the Identity Card issued by

the Election Commission. The Apex Court in (1999) 7 SCC

(Dwarika Prasas Satpathy Vs.Bidyut Dixit) has observed that:-

”the valid marriage for the purpose of
summary proceedings under Section 125
Cr.P.C is to be determined on the basis of the
evidence brought on record by the parties.

The standard of proof of marriage in such
proceedings is not as strict as is required in a
trial of offence under Section 494 of IPC.”

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11. The learned Revisional Court, in my view, has rightly

considered the available evidence on record for reaching to the

conclusion that for the purpose of deciding the application under

Section 125 of the Code of Criminal Procedure, the status of the non-

applicant can be considered as a wife of the applicant and has

granted maintenance @ Rs. 2,500/-.

12. The applicant at the relevant time was working with

Bharat Sanchar Nigam Ltd. The submissions are not advanced before

this Court in respect of the quantum. Therefore this court is not

adverting to the sufficiently or insufficiency of the same.

13. The Revisional court in my view, has not committed any

jurisdictional error warranting interference. Hence,the application is

dismissed . Rule is discharged . No costs.

JUDGE

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