JUDGMENT Revision applicant being wife of respondent had preferred application for grant of maintenance under section 125 of Cr.P.C. bearing Misc. Criminal Application No.68/2000 before the court of J.M.F.C., Warora. She had claimed that she is legally wedded wife of the respondent-non-applicant having manied with him about 25 years back and marriage is still subsisting. The respondent is working in P.W.D. Office of Mouja Kutki, Tahsil Hinganghat, District Wardha. She was living with him. Thereafter respondent retired. During the absence of the applicant when she had gone to her parent's place, respondent took away all the household goods from Kutki to Hinganghat, when she came to Kutki she found nothing in the house no utensils for cooking or grains were there. So she had to go to her parents' place. Since then she is living with her mother. The respondent refused and neglected to maintain her. It is claimed that the respondent has sufficient means to pay maintenance to the applicant as he is retired and getting pension and as she is unable to maintain herself, she claimed Rs. 1000/- per month. 2. The respondent denied all the material allegations and contended that she is legally wedded wife. According to him, she was married with one Namdeo Khudsange and he did not perform any legal marriage with her. According to him, the applicant used to do lab our work on the farm of one Punjabrao. The acquaintance with her was claimed because of the fact that she was admitted in hospital at Nagpur and nobody was to take her care. According to him, the applicant is residing with her son Ganesh. He thus mainly claimed that she is not his legally wedded wife as the marriage between Namdeo Khudsange is still subsisting and she was not divorce. ·He denied his liability to pay maintenance. According to him, this application was filed just to harass him. 3. Learned Trial Court recorded evidence led by the applicant of four witnesses. Respondent examined himself in rebuttal. It needs to be mentioned that the applicant had examined Namdeo Khudsange i.e. her alleged former husband to show that there was valid customary divorce between them. 4. According to him, this application was filed just to harass him. 3. Learned Trial Court recorded evidence led by the applicant of four witnesses. Respondent examined himself in rebuttal. It needs to be mentioned that the applicant had examined Namdeo Khudsange i.e. her alleged former husband to show that there was valid customary divorce between them. 4. After hearing the parties, learned trial Judge found that she was legally wedded wife of the respondent, she is unable to maintain herself and respondent has sufficient means to pay the maintenance as such as he passed an order to grant maintenance of Rs. l000/- per month to the applicant from the date of the application besides cost of Rs.300/-. This judgment he passed on 30-8-2003. 5. The respondent then took up this matter in revision before the Sessions Judge, Chandrapur, bearing Criminal Revision application no. 15612003. After hearing the parties, learned Sessions Judge found that there was no valid divorce between the applicant and her former husband and therefore, the marriage even if it is assumed to be there between the applicant and respondent; was illegal. He by his elaborate judgment found that the applicant is not entitled for the maintenance for the aforesaid reasons and therefore, he allowed the revisions application setting aside the order passed by the learned Magistrate by his order dated 3-3-2004. 6. This order in revision is challenged by revision applicant in instant application. 7. Learned counsel for the applicant has submitted that the order of the learned Magistrate was correct. The parties were living as husband and wife for about 25 years. The fact of alleged divorce though was not pleaded by applicant in her application as rules of pleadings did not strictly apply, the evidence in this behalf led by the applicant should be believed and it should be held that there was valid divorce between the applicant and her former husband and the marriage between the applicant and respondent is legal. Further according to him, the respondent has not adduced any evidence, beside himself, in support of his defence. He has relied on the observations of this court in 2004(3) ALL MR 571 (Prabhubhai Ranchhodbhai Tailor Vs. Mrs. Bhartiben Prabhubhai Tailor). 8. As against the learned counsel for the respondent has relied on the observations of the Apex Court in 1988 Mh.L.J. 335 (Yamunabai Anantrao Adhav Vs. He has relied on the observations of this court in 2004(3) ALL MR 571 (Prabhubhai Ranchhodbhai Tailor Vs. Mrs. Bhartiben Prabhubhai Tailor). 8. As against the learned counsel for the respondent has relied on the observations of the Apex Court in 1988 Mh.L.J. 335 (Yamunabai Anantrao Adhav Vs. Anantrao Shiv ram Adhav and another), this Court in 1996(2) Mh.L.J. 817 : [1996(4) ALL MR 153] (Indu Nimba Pawar Vs. Sumanbai Kadu Pawar and others) and the observations of the Karnataka High Court in 11(1997) DMC 88 (Malayaiah Vs. Smt. G. S. Vasanta Lakshmi & others). The authorities cited by him are to the effect that if the husband establishes that the applicant is not legally wedded wife, then she is not entitled for maintenance under section 125 of Cr.P.C. 9. In the present case, on perusal of the judgment of the learned Additional Sessions Judge, it would be seen that he has dealt with the fact that the plea of divorce between the applicant and her former husband is belated. Further it is not established that there can be mutual divorce between the parties, so also there are no details of alleged divorce in the applicant of the applicant and the customary divorce as pleaded in the present case, is foreign to Hindu law and the divorce deed produced on record at the time of evidence is not reliable. Consequently he held that the marriage between the applicant and her former husband has not been dissolved and therefore, even if there is a marriage between the applicant and respondent at the latter stage, it would not be legal and therefore, the applicant would not be entitled for maintenance as it would be her second marriage. He did not deal in specific with the factum of living the applicant and respondent together for about 25 years as husband and wife, in favour of the applicant. 10. The crucial question in the present case is whether it can be held that there is marriage between the applicants and respondent, if the material relationship is established, then she would be entitled for maintenance because of the obvious fact that the respondent has denied the marriage with her and therefore, refused to maintain her. 11. Here is the case whether the application has not in clear terms stated about her first marriage and divorce in the same. 11. Here is the case whether the application has not in clear terms stated about her first marriage and divorce in the same. In fact she did not state anything about this in her applicant. However, in her evidence she has stated that it was not true that her marriage is performed with one Khudsange and she had son from him. In cross-examination she has told about this and denied the material suggestion that her marriage with that Namdeo Khulsange is still subsisting. Her next witness is Mahadeo Gawande who has deposed about the fact that in the year 1978 the petitioner and respondent had came to him and they had inquired from him that they wanted to marry and thereafter, he and the parties went to the office of the Marriage Registrar and then there was marriage performed at Mahakali Mandir and later on it was registered with the Marriage Registrar. He claimed ignorance about other material including one whether Namdeo Fulsange was alive or dead. The third witness examined by applicant is regarding the income of the respondent. 12. It is pertinent to note that thereafter the applicant examined Namdeo Khulsange who stated that he knows that applicant, she was his wife, but now she is no more his wife and there were disputes between them, so there was divorce document which was reduced in the writing. He filed xerox copy of the document which is exhibit 63. The exhibit 63 is xerox copy of divorce deed, which is dated 9-6-1977 which bears thumb prints of Sewantabai i.e. applicant and the said Namdeo. It clearly depicts that there were disputes between these parties, there were two sons born out of this wedlock and thereafter they gave divorce to each other. 13. It was also decided that the divorce was as per customs prevailing and with their volition and sons were to be with her husband. 14. Learned Revisional Court has observed that his document was wrongly accepted and wrongly proved in evidence, but the fact remains that this xerox copy of this document was produced by said Namdeo Khulsange i.e executant in his evidence. There is ex-facie no reason to disbelieves the same. 14. Learned Revisional Court has observed that his document was wrongly accepted and wrongly proved in evidence, but the fact remains that this xerox copy of this document was produced by said Namdeo Khulsange i.e executant in his evidence. There is ex-facie no reason to disbelieves the same. In my opinion it is rather impossible to say that it is a fabricated document; more so considering the fact that it was on the stamp paper, though the original was not produced, it was xerox copy of the said document. In my opinion when this document which is claimed to be executed about 25 years back, merely because its original is not produced, it can not be disbelieved as done by the learned revisional court. It is pertinent to note that one of the parties to the document i.e. husband is examined as witness. His evidence has to be accepted, as there is no other trustworthy material on record to show that he can get such document fabricated to support applicant. 15. It is no doubt true that the applicant has denied said marriage in her evidence. This factor may speak slightly against her case, but by all means simply because she has denied such marriage and latter on the produced this evidence, her claim for maintenance can not be negatived in the circumstances. which I will discuss later. At this stage suffice it to say that her former marriage apparently is dissolved by customary divorce, for which she has examined 16. In these circumstances, the authorities relied by the learned counsel for the applicant need to be referred in detail. Suffice it to say that as they are on the point of invalidating the claim of the applicant wife for her being second wife and such marriage being illegal one. 17. It is not disputed that in this case the applicant was living with the respondent for about 25 years prior to application. The respondent did not adduce any evidence to show that he was not living with her any time in period of 25 years as husband and wife except his bare words. Apart from this, there is a marriage registration certificate which is at Exhibit 27 which shows that there was marriage between the Kashinath and Sewantabai i.e. present parties. The respondent did not adduce any evidence to show that he was not living with her any time in period of 25 years as husband and wife except his bare words. Apart from this, there is a marriage registration certificate which is at Exhibit 27 which shows that there was marriage between the Kashinath and Sewantabai i.e. present parties. It is the document of registration of marriage dated 5-10-1978 which show that the marriage was performed between the applicant and the respondent. It is not necessary at this stage to consider the evidence led by the respondent. In cross-examination he denied the suggestion regarding marriage with the applicant. He has also denied the registration of marriage in the office of the Sub-Registrar, Chandrapur. He stated that he has three sons from his first wife, he can not say whether his first wife is dead or alive at his house. One marriage card was put to him and he confirmed that 'invitation card Article - A now shown to me. He further stated : ‘‘the name of the applicant is shown as my wife. Photo Article B now shown to me. One Ration card now shown to me. It is in my name. It is at Article C. I have not applied for the said ration card. The name of the applicant is mentioned in Article C as my wife. Election card of the applicant shown to me. It bear the name of applicant as my wife. It is Exhibit 66". All these documents show that the applicant was regarded as wife by the applicant husband throughout, and even in official documents. The notice dated 17-11-1999 was shown to him. He stated that contents of notice that the applicant was residing as his wife now read over to him, be denied the same, obviously for the reason to deny liability. 18. It is obvious that when the marriage certificate is there, applicant is recorded as his wife, in his notice she is shown as wife in the election card, she is shown as wife in the ration card. It can not lie in the mouth of the respondent to say that she is not his wife. 19. Therefore, I find that if the applicant is to be held untrustworthy for not telling about her first marriage in application, the respondent is also not reliable for not disclosing about his first marriage. It can not lie in the mouth of the respondent to say that she is not his wife. 19. Therefore, I find that if the applicant is to be held untrustworthy for not telling about her first marriage in application, the respondent is also not reliable for not disclosing about his first marriage. The fact that they had lived together for about 25 years as husband wife, and so recorded in the official records of the government and also by themselves, coupled with this when the respondent did not adduce any other evidence to show that all the documents which came on record either through applicant or through his cross-examination, are false, it will have to be held that she is his wife, as contemplated under section 125, Cr.P.C. entitled to claim maintenance. 20. Thus the case of the applicant has to be accepted. It can not be thrown away merely because she did not mention about her first marriage and dissolution thereof in her application. In this behalf observations of the Division Bench of this Court in 2004(3) ALL MR 571 (Prabhubhai Ranchhodbhai Tailor Vs. Mrs. Bhartiben Prabhubhai Tailor), in that case in paragraph 16 need to be seen: ‘‘16- We do not find any merit in the admissions made on behalf of the husband.In all the cases including the case Yamunabai (supra) cited before us the issue before the court was whether a woman married to a man having a living spouse, is entitled for maintenance? In the facts of each case where the first wife of the husband was living and her status as 'wife' was not served, it was held that the second marriage was null and void and the second wife is not entitled for maintenance. In the present case, the facts are altogether different. In the facts of each case where the first wife of the husband was living and her status as 'wife' was not served, it was held that the second marriage was null and void and the second wife is not entitled for maintenance. In the present case, the facts are altogether different. The evidence adduced by the wife show that although on the date of her marriage with the husband on 2-6-1978 the first marriage of the husband was subsisting, the first marriage of the husband had come to an end with the execution of Deed of Divorce date 7-4-1980 It was contended on behalf of the wife that since the husband has not led any evidence to establish the subsistence of his first marriage, her testimony as well as her tendering xerox copy of the divorce deed does neither exclusively establish the validity of the first marriage of the husband nor its dissolution. Before the Family Court, no such issue was framed and there is no finding to that effect. Moreover, the husband instead of rebutting the above contentions, has in face chosen to make capital out of it. Therefore, we proceed on the footing that the first marriage of the husband was subsisting on 2-6-1978. If the first marriage of the husband was subsisting on the date of the second marriage, then as per law and as per the judicial decisions of the Apex Court the second marriage is null and void. But the question in the present case is, if the first marriage has come to an end by a Divorce Deed dated 7-4-1980 and both the parties to the second marriage continue to live together as husband and wife after the dissolution of the first marriage, whether the second wife can be deprived of the status of a wife". In our opinion, even though the second marriage of the husband during the subsistence of the first marriage was null and void, on the dissolution of the first marriage, if the parties to the second marriage continued to live together as husband and wife, then there is no impediment in conferring the status of 'wife' to the second wife. In our opinion, even though the second marriage of the husband during the subsistence of the first marriage was null and void, on the dissolution of the first marriage, if the parties to the second marriage continued to live together as husband and wife, then there is no impediment in conferring the status of 'wife' to the second wife. In other words, even if the second marriage is null and void when solemnized on account of the substances of the first marriage of the husband, if the parties to the second marriage continue to live as husband and wife even after divorce of the first marriage then the second wife would be entitled to the status of a wife and consequently has a right to claim maintenance. Thus, the decisions of the Apex court relied upon by the husband are distinguishable on facts, in as much as, in all those cases, the issue was relating to grant of maintenance to the second wife during the subsistence of the first marriage; whereas in the present case, the issue is relating to grant of maintenance to the second wife after the divorce of the first marriage." 21. In my opinion, in the peculiar facts of the case, there was no necessity for the wife to specifically plea and prove about her first marriage and dissolution thereof. In fact she has proved this during the course of the evidence, though in absence of the pleadings, which had gone on record without any specific objection, at that stage by the respondent. In my opinion, this is a case, wherein the justice has to be done without allowing technicalities of procedure to prevail. Applicant has to be granted maintenance particularly when there is denial of marriage by the respondent of such type. Therefore, the order passed by the learned Sessions Judge calls for interference to secure ends of justice and it is liable to be set aside. In these circumstances of the case, it is set aside and that of learned Magistrate is restored. According this revision is allowed in above terms.