1 CRI.WP.NO.564/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.564/2010 Balaji s/o Laxmanrao Ambhore - PETITIONER VERSUS Chhayabai w/o Balaji Ambhore - RESPONDENT ***** Mr.PN Nagargoje, Adv. h/for Mr. PR Katneshwarkar, Advocate for Petitioner; Mr.NN Chitlange, Adv.for sole respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 1st February, 2011. PER COURT : 1) Heard both sides. 2) Maintenance proceedings initiated by respondent/wife did not yield result as the learned Judicial Magistrate First Class held that marriage of petitioner – Balaji was already in force with Dwarkabai and consequently, the respondent – Chhayabai being the second wife, is not eligible to get maintenance. This judgment of the learned JMFC was challenged by respondent – Chhayabai in Criminal Revision Application No. 2 CRI.WP.NO.564/2010 4/2008 before the learned District Judge. The learned Additional Sessions Judge by order dated 31st March, 2010 held that Chayabai is legally wedded wife of petitioner – Balaji and directed the learned JMFC to decide as to whether Chayabai is entitled for maintenance on other ground, and if yes, for how much amount. This observation of the learned Additional Sessions Judge, Basmathnagar are questioned by petitioner – Balaji, the husband. 3) The learned Counsel for petitioner submits since marital status of Balaji with Dwarkabai is accepted by Chayabai, it is for her to seek a declaration from competent Civil Court about her status to be a married wife of Balaji. For that purpose, the learned Counsel has placed reliance to the judgment in the matter of Indu Nimba Pawar Vs. Sou.Sumanbai Kadu Pawar and Ors. - 1996 (3) Bom.C.R. 606. In the said case, the contention of divorce from earlier husband could not be well established as husband stepped in witness box to demonstrate subsistence of the marriage. 4) In the present case, on analysis of evidence of Chhayabai, I find though she has accepted about marriage of Balaji with Dwarkabai, however, she has denied that Dwarkabai is alive 3 CRI.WP.NO.564/2010 or she is aware that she is informed by Balaji about of divorcing Dwarkabai and entering into marriage with her. 5) The learned Additional Sessions Judge also found that marital ties of Balaji with Dwarkabai are severed since last fifteen years. Balaji did not examine Dwarkabai to indicate subsistence of any such marriage. The observations of learned Judge about divorce between Dwarkabai and Balaji may not be correct, however, responsibility was totally on Balaji to establish subsistence of the marriage; His failure was naturally held in favour of Chayabai, respondent herein. I do not see any error on the part of the learned Additional Sessions Judge in appreciating the factual matrix of the matter. 6) The learned Counsel relied to the judgment in the matter of Savitaben Somabhai Bhatiya Vs. State of Gujarat and Ors. – 2005 Cri.L.J. 2141, in which the Apex court has observed as under, - “ The 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 section 125 of the Code or the Hindu Marriage Act, 1955. Marriage with person having 4 CRI.WP.NO.564/2010 living spouse is null and void and not voidable.” 7) There cannot be quarrel on the above proposition of law in terms of Hindu Marriage Act, 1955 or under Section 125 Cr.P.C. 8) It is quite clear the observations of the learned Additional Sessions Judge do not call for any interference. Criminal Writ Petition dismissed. ( K.U.CHANDIWAL ) JUDGE bdv/