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2009 DIGILAW 1630 (BOM)

Vinod Panjabrao Patil v. Indu w/o Viinod Patil

2009-12-01

S.S.SHINDE

body2009
Judgment : 1. This writ petition is filed challenging judgment and order passed by Ad hoc Additional Sessions Judge-2, Nagpur in Criminal Revision No. 644/2006 on 03.12.2007 upholding judgment and order passed by Judicial Magistrate First Class, Umred in Criminal Application No. 30/2004 on 05.04.2006. Brief facts of the case are as under. 2. The respondent herein filed Misc. Criminal Application No. 30/2004 before Judicial Magistrate First Class, Umred for maintenance under Section 125 of the Code of Criminal Procedure. The said application came to be rejected on 05.04.2006. Being aggrieved thereby, the respondent herein filed Revision No. 644/2006 before the Court of Sessions at Nagpur. 3. It is the case of the respondent-wife/original applicant that she is legally wedded wife of the petitioner. Their marriage was solemnized on 09.01.2000 at Brahmapuri as per Buddha rites and customs. After marriage, she went to the house of non applicant at Arvi and resided there for about 9-10 months. Thereafter, she along with petitioner, resided at Wardha till 01.09.2002. Three sons namely Anit, Sumit and Nishant of non applicant i.e. present petitioner from his first wife were also residing along with petitioner and respondent. The first wife of petitioner-husband died in the year 1995. 4. It is further the case of respondent that petitioner ill treated the respondent and also beat her under the influence of liquor on account of suspicion. He has also demanded Rs. 40,000/- and threatened her to kill. Non applicant-husband on 01.09.2002 sent the applicant along with brother-in-law Prashant Tayade at Bus-Stop and boarded her in the Bus to Wardha. Since then the respondent-wife is residing along with her sister and her son. She is unable to maintain herself. The non applicant-petitioner is working as Senior Clerk and earning monthly salary of Rs. 10,000/- to Rs. 12,000/- and prayed for maintenance. 5. The petitioner-husband resisted the claim by filing his reply. According to the petitioner, respondent is not his legally wedded wife. He has not married with respondent. She never resided along with him nor any kind of ill treatment was given by him to the respondent. According to the original non applicant-husband, the applicant-wife is sister of his cousin. The applicant is already married and her husband is alive. After death of his first wife, he did not perform second marriage. 6. She never resided along with him nor any kind of ill treatment was given by him to the respondent. According to the original non applicant-husband, the applicant-wife is sister of his cousin. The applicant is already married and her husband is alive. After death of his first wife, he did not perform second marriage. 6. The learned Judicial Magistrate First Class, after considering the evidence on record, found that the respondent is not legally wedded wife of petitioner and on that count alone the Magistrate has rejected the application for maintenance. 7. Against the said order, respondent-wife filed revision before the revisional Court. The revisional Court, in para 13 of its judgment, considered the finding given by the Magistrate that the respondent is not legally wedded wife of the applicant. The revisional Court, considering the evidence on record and other documents, has come to the conclusion that the Judicial Magistrate First Class failed to appreciate the evidence on record and wrongly came to the conclusion that the respondent is not legally wedded wife of the petitioner. The revisional Court has further observed that only on the said count the Judicial Magistrate First Class has rejected the application filed by respondent-wife for maintenance. The revisional Court, in para 13 has discussed about cruel treatment given to the respondent-wife as well as the aspect that the petitioner-husband has neglected and refused to maintain the respondent-wife. The revisional Court has also considered the income of the petitioner-husband and also inability of the wife to maintain herself. On appreciation of the facts and evidence on record, the revisional Court has allowed the revision filed by respondent-wife and directed the petitioner-husband to pay Rs.1500/- per month to the respondent-wife as maintenance from the date of application. 8. Learned counsel for the petitioner submitted that the respondent has solemnized marriage with one Namdeo Pillewan in the year 1989 and she has admitted this fact during her deposition. It is further submitted that the documents produced by the petitioner at Exh.-26 and 27 i.e. copy of ration card and copy of Voter’s list does not mention name of the respondent as wife of the petitioner. It is further submitted that the revisional Court has overlooked the fact that no material was placed on record by the respondent to prove her contention that she is legally wedded wife of the petitioner. It is further submitted that the revisional Court has overlooked the fact that no material was placed on record by the respondent to prove her contention that she is legally wedded wife of the petitioner. It is further submitted that the revisional Court should have considered that the trial Court is right to conclude that the respondent is not legally wedded wife of the petitioner. The judgment and order passed by the trial Court is passed after an elaborate trial and considering all the materials placed before it. 9. It is further submitted that the respondent-wife stayed with the petitioner only for 9-10 month at Arvi and wild allegations are made that the petitioner has demanded dowry of Rs. 40,000/- and cruel treatment is given to the wife. In fact, those allegations are baseless. It is further submitted that the petitioner’s first wife died due to Cancer in 1995 and, therefore, the petitioner got married with the respondent. It is further submitted that on 01.09.2000 one Prashant took respondent to Wardha and now she is staying with her sister. However, she is claiming the maintenance though at her own she left the house of the petitioner. It is further submitted that the main question which falls for consideration is; whether respondent would be entitled to maintenance during the subsistence of earlier marriage of respondent with Namdeo Pillewar? Learned counsel further submitted that respondent-wife has failed to prove that divorce has taken place between the first husband and respondent. Learned counsel further invited my attention to the cross-examination of the respondent-wife and submitted that in her cross-examination she has stated that her first marriage was performed with Namdeo Pilewan in the year 1989. It was performed at Bhendla. Her parents were also present in the marriage. Namdeo is residing at Kahli, Dist. Chandrapur and the respondent-wife also resided with Namdeo for 12 months. Learned counsel invited my attention to the part of cross-examination i.e. “There is no document filed on record showing divorce from me and Namdeo.” and submitted that when there was no document filed on record showing divorce between respondent-wife and Namdeo, the trial Court in the absence of any document on record, has rightly concluded that there was no divorce between the respondent and Namdeo and, therefore, subsisting earlier marriage, no maintenance can be claimed from the present applicant. 10. 10. Learned counsel further invited my attention to the points framed by learned Judicial Magistrate, for consideration. Learned counsel invited my attention to point no.1 and submitted that the respondent herein failed to prove that she is legally wedded wife of the petitioner. Learned counsel invited my attention to para 8 and 9 of the judgment of the trial Court and submitted that the learned Magistrate, in the absence of any document on record has rightly held that the wife utterly failed to prove that she has taken divorce from earlier husband, Namdeo. Learned counsel further invited my attention to the judgment of the Sessions Court and more particularly para 11 of the said judgment and submitted that by list of documents at Exh.-13, the respondent filed deed of divorce which has mutually taken place on 31.10.1990. Learned counsel, therefore, would submit that before the trial Court, it is the proper course to lead the evidence and to place on record necessary documents. The respondent failed to produce divorce deed on record before the trial Court and in absence of that, trial Court has rightly concluded that there is no divorce between the respondent and Namdeo. Learned counsel further submitted that it is not possible for the revisional Court to go into documents and come to different conclusion with the trial Court. The learned counsel further invited my attention to the reported judgment of this Court in Om Prakash Berlia and another ..vs.. Unit Trust of India and others; AIR 1983 BOMBAY 1 and others and more particularly para nos. 13 and 14 of the said judgment and submitted that secondary evidence can obviously be lead only of what the document states not as to whether what the document states is true. Under Section 65 (e), the secondary evidence may be given when the original is a public document within the meaning of S. 74 and only a certified copy of the public document is admissible. Secondary evidence of a public document so led only proves what the document states, no more. In other words, he who seeks to prove public document is relieved of all the obligation to produce original. He can produce a certified copy. All other requirements he must still comply with. 11. Learned counsel further invited my attention to the reported judgment of this Court in Sait Tarajee Khimchand and others ..vs... In other words, he who seeks to prove public document is relieved of all the obligation to produce original. He can produce a certified copy. All other requirements he must still comply with. 11. Learned counsel further invited my attention to the reported judgment of this Court in Sait Tarajee Khimchand and others ..vs... Yelamarti Satyam and others; AIR 1971 SUPREME COURT 1865 and submitted that merely filing of the document on record is not sufficient and it is necessary to prove document and unless the document is proved, no reliance can be placed on the said document. The sum and substance of the submissions advanced by learned counsel for the petitioner is that in the absence of any document that divorce has taken place between the respondent and Namdeo, the trial Court has rightly come to the conclusion that there was no divorce between Namdeo and respondent and, therefore, she is not entitled to maintenance. It is also the contention of learned counsel for the petitioner that mere production of document on record is not sufficient but said document has to be proved and in the present case the respondent has utterly failed to prove the divorce deed between Namdeo and herself. 12. Learned counsel for the respondent submitted that divorce between Namdeo and herself took place in the year 1990. Marriage between the present petitioner and herself took place in the year 2000, therefore, there is a gap of 10 years in between divorce and marriage of the petitioner. It is further submitted that the petitioner was well conversant with the family of the respondent and therefore, it can cannot be said that he was not awarer of the earlier marriage and divorce proceeding. Learned counsel invited my attention to page no.51 of the compilation i.e. Annexure R-G and submitted that copy of Invitation Card, clearly shows that there was marriage between petitioner and respondent. She further invited my attention to the photographs at page nos. 52 and 53 and submitted that there was marriage between present petitioner and respondent. Learned counsel further invited my attention to page no.54 i.e. Annexure R-H i.e. Divorce deed and submitted that the document at Annexure R-H would clearly show that there was divorce between respondent and Namdeo on 31.01.1990. The learned counsel further invited my attention to page nos. 52 and 53 and submitted that there was marriage between present petitioner and respondent. Learned counsel further invited my attention to page no.54 i.e. Annexure R-H i.e. Divorce deed and submitted that the document at Annexure R-H would clearly show that there was divorce between respondent and Namdeo on 31.01.1990. The learned counsel further invited my attention to page nos. 58 and 59 i.e. Annexures R-I and R-J and submitted that the said documents also clearly show that the respondent got married with petitioner. Learned counsel invited my attention to page no. 59, and more particularly to the fact that in the Voter’s list her name is included at Sr. No. 255-A which reads “Patil Indu Vinod-35 years” and at Sr. no. 257-B “Patil Amit Vinod-age 22 years” Therefore, learned counsel submitted that this is the conclusive proof of marriage between respondent and petitioner and, therefore, it is not open for the petitioner to state that no marriage took place between petitioner and respondent. Learned counsel further invited my attention to page no. 61 on record where name of petitioner is shown with name of the respondent as husband. Therefore, learned counsel would submit that it is not open for the petitioner to contend that there was no marriage took place between respondent and petitioner. 13. Coming to the main point, learned counsel for respondent invited my attention to judgment of the Sessions Court in revision and submitted that the Sessions Court in para 11 has taken a note that the answering respondent has submitted list of document at Exh.-19 and also filed deed of divorce which was mutually taken place on 31.01.1990. The said document is registered with Sub Registrar, Brahmapuri. Therefore, it can safely be said that the original applicant i.e. respondent was a divorcee at the time of marriage of petitioner with respondent. The revisional Court has further observed that in proceeding under Section 125 of the Code of Criminal Procedure no strict proof of marriage is required. Learned counsel in para 12 and 13 submitted that the revisional Court taken into consideration all the factors and has rightly reversed the judgment of the trial Court and held that the respondent is entitled to maintenance. Therefore, this Court would not interfere in the impugned judgment and order passed by the revisional Court. Learned counsel in para 12 and 13 submitted that the revisional Court taken into consideration all the factors and has rightly reversed the judgment of the trial Court and held that the respondent is entitled to maintenance. Therefore, this Court would not interfere in the impugned judgment and order passed by the revisional Court. In support of his contention that any proceeding under Section 125 of the Code of Criminal Procedure strict proof of marriage is not required, learned counsel placed reliance in the case of Rajshekhar Hanmant Patil ..vs.. Vijaylalita (According to Her) Rajshekhar Patil; 1997-EQ(BOM)-0-326. Learned counsel for the respondent further placed reliance on the reported judgment Muniandi ..vs.. Jothi; I (1987) DMC 88 and submitted that in the said judgment the Madras High Court has taken a view that it is not necessary to prove marriage beyond reasonable doubt before the grant of maintenance. Learned counsel further placed reliance on Mangala Pralhad Awad ..vs.. Pralhad Haribhau Awad; 1994-EQ(BOM)-0-322 and submitted that in the absence of proof of subsistence of first marriage at the time of second marriage, wife could not be refused maintenance with the presumption operating in her favour about the lawfulness of the second marriage. Learned counsel further placed reliance on the reported judgment in Rajshekhar Hanmant Patil (supra) and submitted that challenge to grant of maintenance on the ground of earlier marriage of revisionist was subsisting the second wife could not claim maintenance and the respondent wife producing certified copy of divorce is sufficient to hold wife is entitled to the maintenance. 14. Therefore, the learned counsel would submit that for the proceedings under Section 125 of the Code of Criminal Procedure, it is not necessary to establish the case by strict proof and, therefore, the submissions advanced by learned counsel for the petitioner that the divorce between earlier husband is not proof by the respondent and is required to be rejected. 15. Learned counsel further submitted that the judgment relied upon by counsel for the petitioner are about secondary evidence and public document. Learned counsel submitted that in the cross-examination of the respondent, she has stated before the concerned Court about the divorce and, therefore, the said evidence is primary. Hence, judgments relied upon by counsel for the petitioner is not applicable in the facts and circumstances of the present case. Learned counsel submitted that in the cross-examination of the respondent, she has stated before the concerned Court about the divorce and, therefore, the said evidence is primary. Hence, judgments relied upon by counsel for the petitioner is not applicable in the facts and circumstances of the present case. Learned counsel further submitted that the document, which was produced on record i.e. divorce deed is a private document and, therefore, another judgment which is cited by counsel for the petitioner is in respect of public document, therefore, both the judgments are not applicable in the facts and circumstances of the present case. 16. I have heard learned counsel for the petitioner and respondent. On careful perusal of the judgment and order passed by the revisional Court and more particularly para nos. 11, 12 and 13 of the said judgment, it clearly appears that possible and reasonable view has been taken by the revisional Court. It is well established by this time that proceedings under Section 125 of the Code of Criminal Procedure are of civil nature and no strict proof can be asked from the wife to establish her case for maintenance. The proceedings under Section 125 of the Code of Criminal procedure cannot be equated like criminal trial. Learned counsel for the respondent in her submission is right that the necessary document was placed on record before the revisional Court and also fact of divorce was stated in the cross-examination of the respondent-wife. On careful perusal of cross-examination of the respondent-wife, it clearly appears that she has clearly stated that there was divorce between Namdeo and herself. Her statement in cross-examination is a primary evidence. Though the document was not placed on record at the relevant time, the fact remains that she stated before the trial Court that there was divorce between Namdeo and herself. It is also relevant to mention that the divorce took place in the year 1990. The respondent-wife is right in placing reliance on copy of divorce deed from page nos. 54 to 57 of the compilation i.e. Annexure R-H and affidavit-in-reply filed by her. The said document makes it clear that there was divorce between Namdeo and respondent on 31.01.1990. As already stated hereinabove, no strict proof like criminal proceeding is required in proceeding under Section 125 of the Code of Criminal Procedure. 54 to 57 of the compilation i.e. Annexure R-H and affidavit-in-reply filed by her. The said document makes it clear that there was divorce between Namdeo and respondent on 31.01.1990. As already stated hereinabove, no strict proof like criminal proceeding is required in proceeding under Section 125 of the Code of Criminal Procedure. The revisional Court has rightly placed reliance on the said document and further observed that there was divorce between respondent and Namdeo. On perusal of the annexures to the affidavit-in-reply, it is clear that the marriage between present applicant and respondent was solemnized. Therefore, there is no question of doubting the fact of marriage between the petitioner and respondent. Learned counsel appearing for the petitioner tried to contend that the document i.e. divorce deed was not placed on record before the trial Court and in the absence said document on record and further not proving the said document, would necessarily result into existence of marriage between Namdeo and respondent herein. This contention is required to be rejected in view of the fact that in the cross-examination the respondent in clear words stated that there was divorce between Namdeo and herself. Learned counsel for the respondent is right in submitting that the evidence in the nature of submission by respondent-wife before the Court is a primary evidence. Therefore, rules of secondary evidence are not applicable in the instant case as tried to be contended. Learned counsel for the petitioner relied upon reported judgment in the case of Om Prakash Berlia and another (supra). However, in my considered opinion, learned counsel for the respondent is right in submitting that the document of divorce deed is in the nature of private document and, therefore, it cannot be said that it is a public document as tried to be contended by learned counsel for petitioner. 17. Careful perusal of the judgment by revisional Court and the ingredients placed on record by respondent along with reply, I do not find any substance in the contentions raised by counsel for the petitioner. Firstly, in the proceeding under Section 125 of the Code of Criminal Procedure, rules of evidence cannot be strictly applied as time and again stated by Hon’ble Apex Court. The respondent herein, in her cross-examination, has clearly stated that there was divorce between Namdeo and herself and, therefore, the said evidence is in the nature of primary evidence. Firstly, in the proceeding under Section 125 of the Code of Criminal Procedure, rules of evidence cannot be strictly applied as time and again stated by Hon’ble Apex Court. The respondent herein, in her cross-examination, has clearly stated that there was divorce between Namdeo and herself and, therefore, the said evidence is in the nature of primary evidence. The Sessions Court has rightly observed that in para 11 of the judgment that deed of divorce placed on record clearly shows that divorce had taken place on 31.01.1990 mutually and the said document is registered before Sub Registrar, Brahmapuri and, therefore, it can be said that the respondent was divorced at the time of marriage of with petitioner and the documents placed on record along with the affidavit-in-reply also makes case beyond doubt that the marriage had taken place between the present petitioner and respondent. 18. Therefore, taking overall view of the matter, I find that the revisional Court, which is last court on facts correctly appreciated the facts of the case and also divorce deed and has reached to a reasonable and possible conclusion. No interference is warranted in the judgment and order passed by the revisional Court. Provisions of Section 125 of the Code of Criminal Procedure are specially meant for the benefit of the woman when she is placed in helpless situation and when she is not able to maintain herself and husband has neglected to maintain the wife and, therefore, by applying parameters of strict proof and technicalities the intentions of Legislature therefore cannot be foisted. Hence, I do not find any substance in the present writ petition. 19. In the result, the writ petition is dismissed. Rule discharged. Interim relief is vacated. In view of disposal of the wit petition, criminal applications, if any pending, stand disposed of.