1 IN THE HIGH COURT OF JUD ICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL REVISION APPLICATION NO. 59 of 2006 Smt. Jaibunbee w/o Raghunath @ Salim, Aged about 43 years, Occ-Household, R/o Near Nallah (Masjid), New Ahbab Colony, Nagpur. ... ... … APPLICANT. Versus Raghunath @ Salim s/o Sonu Bhannare aged about 57 years, Occ: Service, R/o C/o Dr. Vikram Kamble, Plot no. 114 Near Chakole Flour Mill, Near Rameshwari Bus Stop, Kashinagar, Nagpur. … ... … NON-APPLICANTS. ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. R. Ahmad, Adv for the applicant. Mr. P.C. Itkelwar, Adv. for the non-applicant. CORAM : A.B. CHAUDHARI, J. DATED : 29th March, 2010. ORAL JUDGMENT 1. Being aggrieved by the judgment and order dated 20th December, 2005 in Petition no. E-198/2003 Smt. Zaibunnisa Vs. Raghunath, by which application for grant of maintenance under section 125 Cr.P.C. filed by the applicant wife was dismissed by the Judge, Family Court, Nagpur, the present revision application has been filed by the wife. 2 2. In support of revision application Mr. R. Ahmad, learned counsel for applicant wife, vehemently argued that the Family Court committed error in holding that the applicant was not legally wedded wife of the respondent husband because she failed to prove that she was divorced by her earlier husband Pirukhan and therefore had no status of a legally wedded wife of the non-applicant. As a matter of fact, the learned counsel invited my attention to the cross-examination. He pointed out that she has categorically stated that she was divorced by Pirukhan. Mr. Ahmed then drew my attention to the documentary evidence duly proved by the applicant wife before the court i.e. Exh. 23 showing her name as wife of non-applicant regarding discharge ticket of the applicant from the hospital dated 28/4/01. Exh. 24 is in respect of non-applicant husband from OPD. Exh. 25 and 26 are in respect of the applicant shown as wife of non-applicant from OPD of railway hospital. Exh. 30 and 31 are the LIC policies in which applicant Jaibunbee has been shown as wife and nominee of the non-applicant husband in a policy in the name of respondent husband. Ex. 32 is the ‘Nikahanama’ in which non-applicant has been described as Salim. Exh. 33 is the identity card of the respondent issued by Central Railway in which applicant has been shown as his wife. Article A is the affidavit sworn by him for embracing Islam. Article B is application filed by him nominating applicant wife as his nominee. Article C is a same type of declaration to the Railway in which he 3 has shown applicant as his wife. Article D-1, D-2 and D-3 are to the similar effect. Article F is the affidavit sworn by him. Article G is ‘Ikrarnama’ signed by him. Exh. 54, 55, 56, 57, 58, 59, 60, 61, 62 and 63 are the photographs together. Mr. Ahmed, therefore, argued that the applicant has got enough evidence on record, documentary as well as oral, and the trial court Judge rejected the application for maintenance only on the ground that she was not legally wedded wife of the non-applicant because she did not prove the divorce with Pirukhan. Therefore, he prayed for allowing the application for grant of maintenance from the date of application i.e. 16.6.03 3. None appeared for the respondent though served. I have gone through the impugned order made by the Judge, Family Court. I have carefully gone through the entire evidence, documentary as well as oral, from the record of the lower court with the assistance of Mr. Ahmad. There is a categorical evidence of the applicant wife that she was divorced by her earlier husband Pirukhan. There is further categorical oral evidence that the non-applicant before marrying applicant had embraced Islam and had accordingly filed affidavit and thereafter he had married the applicant. Documentary evidence referred before me by Mr. Ahmed, in my opinion, is voluminous to indicate that the non-applicant husband treated applicant as his wife and that is why in the government record of his employer i.e. Central Railway 4 there are several entries made in her name so also jointly with the non-applicant. She has been in clear term described as wife in LIC policy and the other documents which have been duly proved on record. Non-applicant husband has not been able to shatter this evidence at all. On the contrary, there is evidence of P.W.4 Kanhayyalal that they were living together in the railway quarters for number of years. Even Leelabai P.W.3, the third wife of the respondent, admitted in her evidence that when she married the non-applicant, applicant Jaibunbee was already residing with her husband and thereafter the non- applicant deserted the applicant and started living with Leelabai. Looking to the above evidence, the trial court made a mistake in holding that applicant Jaibunbee was not divorced by her earlier husband Pirukhan. The conduct of the non-applicant in residing with applicant Jaibunbee for number of years, as is seen from the evidence, and his conduct in treating Jaibunbee as his wife by entering her name as his wife at Government record on number of occasions clearly show that at least the non- applicant wanted to treat the applicant as his legally wedded wife. The non-applicant cannot be allowed to take a somersault now in order to avoid the liability of maintenance and to take up a stand that she was not divorced by her earlier husband Pirukhan. Thus, the findings recorded by the Judge, Family Court is perverse, illegal and against the evidence, oral as well as documentary, that has been duly proved on record by the 5 applicant wife. The impugned judgment and order, therefore, cannot be supported. Since the applicant wife has been deserted by the non-applicant and admittedly since she is not provided anything for her maintenance in the summary proceedings for maintenance under section 125, the family court ought to have made an order granting her maintenance. 4. Looking to the status of the applicant who is working as a labourer and finding that the non-applicant Raghunath is already having three children from his third wife and the liability to maintain the third wife as well, and the need of the applicant, to my mind, the claim of the applicant for maintenance at the rate of Rs. 1500/- per month would be on a higher side, particularly because this court is allowing her application for grant of maintenance from the date of her application so that she would be entitled to get the amount of maintenance in lump sum and that would obviously compensate her. The non- applicant is admittedly working as a diesel engine driver in Central Railway and is yet to retire. Looking to the liability he has and the salary he must be getting as a railway driver, it would be appropriate to allow maintenance to the applicant wife at the rate of Rs. 1,000/- per month from the date of her application i.e. 16/3/2003. In the result, I make the following order. 6 ORDER Revision application no. 59 of 2006 is partly allowed. The impugned judgment and order recorded by the Family Court on 20/12/2005 in Petition no. E-198/2003 is quashed and set aside. It is ordered that the applicant is entitled to get maintenance of Rs. 1,000/- per month from the date of her application from the non-applicant husband and the non-applicant husband is directed to pay maintenance to the applicant wife @ Rs. 1,000/- per month from the date of her application i.e. 16/06/2003. In additio0n, the non-applicant husband shall pay cost of Rs. 5,000/- to the applicant of this application. JUDGE Hirekhan