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

CRIMINAL WRIT PETITION No.1126 OF 2017

Bandu @ Narayan s/o. Ramchandra Gote,
Aged about 44 years,
Occupation : Agriculturist,
R/o. At Post Tondgaon,
Ta. And Distt. Washim. : PETITIONER

…VERSUS…

Sau. Tulsabai w/o. Narayan Gote,
Aged about 39 years,
Occupation : Housework,
R/o. AT Post Tondgaon,
Tq. and Distt. Washim. : RESPONDENT

———————————
Shri A.S. Deshpande, Advocate for the Petitioner.
Shri V.K. Paliwal, Advocate for the Respondent.
———————————

CORAM : S.B. SHUKRE, J.

th
DATE : 20
FEBRUARY, 2018.

ORAL JUDGMENT :

1. Heard.

2. Rule. Rule made returnable forthwith.

3. Heard finally by consent.

4. This petition challenges two orders one is of 31 st March,

2017, passed by the Judicial Magistrate, First Class, Washim, in Misc.

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Criminal Case No.171/2014 and the other dated 19.8.2017, passed by

the Sessions Judge, Washim in Criminal Revision No.16/2017.

5. By the order passed on 31.3.2017, maintenance of Rs.1,500/-

per month was granted to the respondent-wife under Section 125 of the

Code of Criminal Procedure. It was also granted at the same rate to

Madhuri, daughter begotten by the respondent during her wedlock with

the petitioner. We are not concerned with the maintenance granted to

the daughter as it is not under challenge in this petition.

6. The order of monthly maintenance granted to the respondent

was confirmed by the learned Sessions Judge when he dismissed

Criminal Revision Application No.16/2017, on 19 th August, 2017.

Learned Sessions Judge relied upon the case Badshah Vs. Sou. Urmila

Badshah Godse and another, reported in AIR 2014 SC 869.

7. In Badshah, Hon’ble Supreme Court held that as the

respondent-wife was kept in the dark about the petitioner-husband’s first

marriage in that case, the petitioner-husband could not be allowed to

take advantage of his own wrong and turn around to say that the

respondent was not entitled to maintenance in a petition filed under

Section 125 of Cr.P.C. The Hon’ble Apex Court further held that at least

for the purpose of Section 125 Cr.P.C., on such facts, the respondent-wife

would have to be treated as the wife of the petitioner-husband following

the spirit of the two cases, namely, S. Sethurathinam Pillai Vs. Barbara

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alias Dolly Sethurathinam, reported in (1971) 3 SCC 923 and

Chanmuniya vs. Virendra Kumar Singh Kushwaha and another

reported in (2011) 1 SCC 141. The Hon’ble Apex Court also explained

the law laid down in it’s two previous cases of Smt. Yamunabai

Anantrao Adhav reported in (AIR 1988 SC 644) and Savitaben

Somabhai Bhatiya vs. State of Gujarat and others (AIR 2005 SC

1809) by observing that these judgments would apply only in those

circumstances where a woman married a man with full knowledge of the

subsistence of first marriage.

8. In the case of Savitaben Hon’ble Supreme Court held that

meaning of the term ‘wife’ used in section 125 of the Cr. P.C. cannot be

enlarged to include a woman not lawfully married. It held that the

question as to whether or not a woman is a wife can be decided only by

reference to the personal law applicable to the parties and it is only

where the woman establishes the fact that she is a wife in accordance

with the personal law applicable to the party that an application for

maintenance can be entertained. It also observed that the marriage of a

woman in accordance with the Hindu rights with a man having living

spouse is a nullity in the eye of law and if the first marriage is proved, the

woman whose marriage with the man is subsequent to the first marriage

is not entitled to the benefit of Section 125 of the Cr.P.C. However, as

stated earlier, these observations of the Hon’ble Apex Court have been

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explained by the Supreme Court in the subsequent decision of Badshah.

Same were the observations of the Hon’ble Apex Court in the case of

Yamunabai Anantrao Adhav (supra) and they have also been explained in

similar fashion in the subsequent decision of the Supreme Court in

Badshah.

9. In the present case, there is no evidence brought on record to

prove that when the marriage of the respondent was solemnized in the

year 1995 with the petitioner, the respondent possessed knowledge of

the subsistence of the first marriage of the petitioner. A reference was

made to the evidence of the father of the respondent (PW 2) by the

learned counsel for the petitioner to enable this Court to infer from an

admission given by him in his cross-examination that at least father of

the respondent knew about the subsistence of the first marriage of the

petitioner. On a careful reading of the cross-examination of the PW 2

Arjun, however, I could not notice any such admission having been given

by PW 2 Arjun. The only admission that he gives is that he was aware of

the first marriage of the petitioner, but he clarifies that he was not aware

of the date or the year when so called first marriage of the petitioner took

place. Unless, the year or the date is stated or admitted by a witness, no

conclusion about the marriage being first in point of time can be made.

That apart, knowledge of father of a woman cannot be said to be the

knowledge of the woman herself. There has to be a further admission in

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the matter. The father must admit that he had informed his daughter

about subsistence of the first marriage of the petitioner and thereafter the

daughter should also admit that she was so informed by her father.

These further admissions are absent in the present case and, therefore,

whatever has been admitted by the father of the respondent cannot be

conceived to be the personal knowledge of the respondent. The

respondent, on her part has not admitted anything about subsistence of

the first marriage. On the contrary, the petitioner has admitted that

Madhuri is his daughter against the averment of the respondent that she

is the daughter conceived by her from her marital relationship with the

petitioner. If the petitioner admits that Madhuri was his such daughter,

the contention of the petitioner that respondent is not entitled to receive

any maintenance from him cannot be accepted unless and until he brings

on record cogent evidence about his first marriage and also about its

subsistence at the time when he performed marriage with the

respondent. The petitioner has not adduced any such evidence and

proved at least the fact of subsistence of his first marriage. He could

have examined Taibai, his first wife as per his claim, to prove this fact.

But, the petitioner did not examine her.

10. In view of above, I find that on facts, the petitioner could not

prove subsistence of his first marriage at the time when he performed

marriage with the respondent. I also find that the petitioner could not

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prove the knowledge of the respondent about subsistence of the first

marriage. As such, the law laid down by the Hon’ble Apex Court in the

case of Badshah (supra) would squarely apply to the facts of the case and

has been correctly applied by the Courts below.

11. In the case of Sanghmitra
and others Vs. Ganpat, Criminal

Application (APL) No.479/2012, decided on 22.01.2016, learned

Single Judge of this Court has also taken a similar view when he found

that the pleadings made in the application themselves left no doubt to

advance the submission that the marriage of the husband with the

woman was on account of any concealment of the fact of previous

marriage. These facts sufficiently show that in the case of Sanghamitra,

it was proved by the husband that at the time when he entered into a

wedlock with the wife, the wife possessed personal knowledge of

subsistence of the first marriage. So, even this case would render no

assistance to the case of the petitioner.

12. In the result, I find no merit in this criminal writ petition and

it deserves to be dismissed.

13. Criminal Writ Petition stands dismissed.

14. Rule is discharged.

JUDGE
okMksns

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