1 Cri.Appln.No.1050/2007 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1050/2007. Shri Gangadhar s/o Ashruba Bangane Age: 54 Yrs., occu. Govt.Service, R/o Laygaon, Post Khodegaon, Tq. and Dist.Aurangabad. - APPLICANT VERSUS 1) Sau. Kadubai w/o Gangadhar Bangane, Age: 46 Yrs., occupation – Household, r/o at present Aadgaon (Bk.) Tq. And Dist. Aurangabad. 2) The State of Maharashtra. - RESPONDENTS ***** Mrs.PV Langhe, Advocate for Applicant; Mr.RV Gore, Adv. For Respondent No.1; Mr.VD Rakh, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 1 st July, 2011. ORAL JUDGMENT: 1) Heard the learned Counsel for the respective parties extensively. Rule was issued on 14th August, 2007. 2) Award of maintenance allowance by the learned Additional Sessions Judge, Aurangabad in 2 Cri.Appln.No.1050/2007 Criminal Revision No.132/2006 @ Rs.1500 per month, reversing the judgment of the learned Judicial Magistrate First Class, Aurangabad, is impugned by the applicant. 3) Respondent – Kadubai filed an application, under Section 125 Cr.P.C., claiming to be a married wife of applicant – Gangadhar before 25 years of her evidence. Gangadhar disown the relations. On assessing the evidence, learned Judicial Magistrate First Class found that Kadubai or her witness could not conclusively establish that she was a legally wedded wife of Gangadhar, though she could primarily indicate and establish of her cohabitation with Gangadhar. 4) In the evidence, it was proved that Gangadhar had already married to Parwatabai, from whom he has three children. At the material time, they were quite grown up, as has been admitted by Kadubai. The cross-examination of Kadubai and her admissions therein reveal that she was forced by her brother and villagers to initiate maintenance proceedings against Gangadhar. She virtually accepts, she was not interested for any such cause against Gangadhar. She further accepts, there was no reason or occasion for her to file such case against 3 Cri.Appln.No.1050/2007 Gangadhar. 5) The learned Additional Sessions Judge, while accepting the case of Kadubai, went on probabilities and the long-drawn cohabitation of Kadubai. True it is, Kadubai had a long-drawn cohabitation, may be 25 years, but her evidence suggest and establish that Gangadhar was already married person when Kadubai started staying with him. 6) Reliance placed by the learned Additional Sessions Judge to the judgment reported in AIR 1978 SC 1557 (Badri Vs. Dy. Director), which reads as under, - "The law presumes in favour of marriage and against the concubinage. Continuous cohabitation for a number of years may raise the presumption. The presumption can be replied only by strong and conclusive evidence and the mere fact that direct evidence of marriage, which took place many years ago, is un-satisfactory, can not displace the presumption." is mis-placed application to the facts of the present case. It was the case of presumption in favour of marriage and against concubinage. Here, it is not a case of concubinage. But, Gangadhar claims, he was already a married person at the material time. 4 Cri.Appln.No.1050/2007 7) The legal position in respect of award of maintenance in terms of Section 125 Cr.P.C. Is explained by the Hon'ble Apex court in the matter of Smt. Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Anr., reported in AIR 1988 SC 644. The Hon'ble Lordships have explained the expression "wife" used in Section 125 of Cr.P.C., to be interpreted to mean, only a legally wedded wife. The Lordships indicated, the term "wife" under Section 125 of the Code could not be given a wider and expanded meaning, so as to include therein not only a lawfully wedded wife, but also another woman. The Apex Court observed, - "that a marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is, therefore, not entitled to the benefit of Setion 125 of the Code. 8) The long-drawn cohabitation of Kadubai with Gangadhar, even if a factual aspect, she virtually faced and paid her entire life to meet the needs of said Gangadhar. However, due to above reasons, she has to remain satisfied without any award of maintenance. 9) The observations of the learned Additional Sessions Judge, of presumption or holding Kadubai to be a legally wedded wife of 5 Cri.Appln.No.1050/2007 Gangadhar, is not in tune with the evidence adduced, even if the electoral card shows her to be wife of Gangadhar. In the set of above situation, the order of learned Additional Sessions Judge, Aurangabad, dated 1st March, 2007, is quashed and set aside. The order of learned JMFC dated 7.6.2006 is maintained. 9) The learned Counsel for applicant(Gangadhar) makes a statement, whatever amount so far paid/deposited by Gangadhar, he shall not claim its reimbursement from Respondent – Kadubai. Liberty to Kadubai to withdraw the amount and to adopt appropriate proceedings, as could be advised in law. Rule made absolute. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/ Authentic copy (BD VADNERE,PS)