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2014 DIGILAW 1564 (BOM)

Datta s/o. Dagadu Paul v. Nirmala w/o. Datta Paul

2014-07-17

V.M.DESHPANDE

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JUDGMENT :- These two proceedings can conveniently disposed of by the common judgment since both are arising from one proceeding namely Misc. Application No.31 / 1995 before the learned Judicial Magistrate First Class, Kallam. 2. Misc.AppI.No.31/1995 was initiated in the Court of learned Magistrate at Kallam by the present respondent. (For the sake of convenience, the parties will be referred to as husband and wife.) Wife moved an application u/s 125 of the Cr.P.C. for grant of maintenance. She claimed maintenance @ Rs.500/- per month since she was unable to maintain herself and she was deserted by the husband. The application was allowed by the learned Magistrate vide order dated 06/08/1998. The learned Magistrate, though found in favour of wife that she is deserted and there is no means to feed herself, the Magistrate granted maintenance of Rs.300/- per month. This order give rise to the 2 revisions, one by the husband i.e. Cri. Revision Application No.66/1998 and another Cri. Revision Application No.80/1998 by the wife. Husband was dis-satisfied with the grant of maintenance in favour of wife, whereas wife was dissatisfied with the quantum of maintenance. Both these revisions were decided and disposed of by the learned Revisional Court by common judgment dated 16/06/1999. By the said common judgment, the Revisional Court was pleased to dismiss the Criminal Revision No.66/ 1998 filed by husband whereas the revision by wife bearing Revision No.80/1998 was allowed and the maintenance amount was enhanced from Rs.300/- to Rs.500/-. Husband filed Criminal Writ Petition No.486/2001 challenging the dismissal of his revision and preferred Criminal Revision No.354/1999 questioning the correctness of the order of enhancement by the learned Revisional Court. The basic fabric of the written statement filed before the Magistrate opposing the claim of the wife and the main limb of the argument before this Court by the learned counsel for the husband is about the very existence of the relationship as husband and wife between the pal1ies. The learned counsel tries to urge in order to substantiate the claim of the husband that no date, year or place of marriage is disclosed in the application by the wife. Further no details of the said marriage are also disclosed. The learned counsel tries to urge in order to substantiate the claim of the husband that no date, year or place of marriage is disclosed in the application by the wife. Further no details of the said marriage are also disclosed. The learned counsel submitted that the wife has not initiated the proceedings u/s 494 of the TPC against the husband, which clearly shows and demonstrated that Indubai is not his second wife with whom he has performed the marriage during the subsistence of his marriage with wife. He further submitted that the wife has utterly failed to discharge the burden rests on her shoulder about the marriage. Hence he submitted that both the Courts below have committed an error in allowing the application of the wife. Hence he prayed that the orders passed by the Courts below be set aside. 3. Per contra, the learned counsel for the wife submitted that the order passed by the Revisional Court is justiciable and there is no fault in enhancing the maintenance from Rs.300/- to Rs.500/-. In as much as, the learned Revisional Court has rightly reached to the conclusion that there is no error in the order passed by the Magistrate about the factum of the relationship between the parties. 4. Let us evaluate the arguments of the learned counsel for husband about the factum of marriage. Much stress is given during the course of argument by the learned counsel that the wife has not pleaded the exact date of marriage in the application u/s 125 of the Cr.P.C. Perusal of the application reveals that there is no date mentioned in the application. However, the Court cannot overlook Exh.48, which is a notice given by wife to husband in the year 1990. More specifically the said notice is dated 24/12/1998. Further the receipt of the notice of Exh.48 is not at all denied by the husband. The receipt of the notice Exh.48 was the point of initiation of the proceedings u/s 125 of the Cr.P.C. In the said notice, the fact was specifically asserted by wife that her marriage took place with the present petitioner on 11/06/1985. That was the first opportunity that was available with the husband to deny the factum of marriage. However, for the reasons best known to the husband/petitioner, though that notice was received by him, there is no reply to the said notice. 5. That was the first opportunity that was available with the husband to deny the factum of marriage. However, for the reasons best known to the husband/petitioner, though that notice was received by him, there is no reply to the said notice. 5. The wife has entered into the witness box. She has stated in her evidence about the requirements contemplated under the Hindu Marriage Act for a valid marriage. The evidence of wife is not at all shattered during her cross-examination. Further, she has examined one Shrirang Mandavkar as her witness. This Shrirang is resident of Terkheda, the ordinary place of residence of husband. In the cross examination of this witness, it is specifically brought on record by the husband himself that he has attended the marriage and he has attended the marriage on the invitation given by the husband. There is no reason to disbelieve the version of this independent witness. Further, this witness appears to have attended the marriage on the invitation given by the husband. That fact clearly demonstrates that the plea of non-performance of the marriage with wife is taken only to deny the rightful claim of wife to get herself maintained at the hands of the husband. Further in the cross examination of the husband, he has admitted that there is a scoring in the Gram Panchayat record in respect of the date of marriage with wife Nirmala. That admission clearly shows and suggests that their exist a marriage in between the petitioner and the respondent and the factum of the said marriage is duly recorded in the record maintained by the Gram Panchayat. Further the husband / the petitioner has failed to point out any documentary evidence to show that his marriage with Indubai has performed prior to his marriage with Nirmala. A stress was given by the learned counsel for the husband on the fact that Nirmala has not filed any proceedings u/s 494 of the IPC, that itself demonstrates the hollowness of the claim made by her about her marriage. Merely because a Criminal Complaint u/s 494 of the IPC is not filed, that does not dis-entitle the rightful claimant of maintenance. The wife was claiming her maintenance. It is quiet possible that she might not interested in the criminal prosecution of her husband but that does not mean that there is no marriage. 6. Merely because a Criminal Complaint u/s 494 of the IPC is not filed, that does not dis-entitle the rightful claimant of maintenance. The wife was claiming her maintenance. It is quiet possible that she might not interested in the criminal prosecution of her husband but that does not mean that there is no marriage. 6. Both the Courts below has rightly appreciated the evidence brought on record by the parties. I see no reason why the findings of fact, concurrently recorded by both the Courts below, which were .based on the available material evidence, to be disturbed in the extra-ordinary jurisdiction of this Court. I refrain myself from exercising the discretion in favour of the petitioner. Consequently, both the petitions are dismissed with costs of Rs.l, 000/- (Rs. One thousand only). The interim stay granted in favour of the present petitioner stands vacated. Rule discharged. Ordered accordingly.