1 cr­wp­3229­09 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. W.P. NO. 3229 OF 2009 Shri. Anil Maruti Chavan ..Petitioner Vs. Jayashri Anil Chavan and Anr. ..Respondents .... Mr. Rupesh Zade i/b Rahul S.Kate Adv. for petitioner Mr. Sanjay D.Thokade Adv. for respondent no.1 Smt. M.M.Deshmukh APP for State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : OCTOBER 19, 2010 P.C.: 1 Heard the learned advocate for the petitioner and the learned advocate for the respondent no.1-wife. 2 The case of the respondent no.1 is that she was married to the petitioner on 1.6.1993. It is her case that she was ill-treated and driven out of house by the petitioner. Hence, she filed application for grant of maintenance under Section 125 of Cr.P.C. before the learned 4th Jt. J.M.F.C. Barshi. By order dated 4.1.2006, the said application 2 cr­wp­3229­09 for maintenance came to be partly allowed and the petitioner was directed to pay maintenance from 20.8.2003 to the month of August-2004 at Rs.1000/- per month, from the month of September, 2004 to the month of October, 2005 at Rs.1200/- per month and from the month of November, 2005 onwards Rs.1500/- per month. 3 Being aggrieved by the said order, the petitioner preferred C.R.A. No. 22 of 2006 before the Sessions Court Solapur. By judgment and order dated 30.6.2009 the said revision came to be dismissed. Hence, this petition. 4 The case of the petitioner is that he was not married to respondent no.2 and thus, the respondent no.2 is not his wife and hence, she is not entitled to any maintenance. His case is that he was married to one Lata on 12.8.1996. 5 The respondent no.1 has led her evidence at Exh. 15 on 7.1.2005. In her evidence she stated that she was married to the petitioner on 01.06.1993. In support of her claim, she has placed reliance on the wedding card and marriage registration certificate. She was cross-examined at length. The petitioner has merely denied the marriage card and marriage registration certificate in his evidence. The question which strikes the mind and remains unanswered is that if at all, the petitioner is not admitting the marriage registration certificate and the 3 cr­wp­3229­09 relationship between him and the respondent no.1 as that of husband and wife, why he has not approached the competent authority/court to set aside the marriage registration certificate or get it declared that it is not binding when this registration certificate came to his knowledge on 27.8.2004. He has even failed to cross-examine the respondent no.1 on the point of registration certificate. 6 As far as the contention of the petitioner that he was not married to respondent no.1 is concerned, the respondent-wife has brought on record the marriage registration certificate (Exh. 46). No doubt, as pointed by the advocate for the petitioner the date of the marriage is 1.6.1993 and the registration of this marriage is on 28.2.2001. This makes no difference because under the prevalent Marriage Registration Act and Rules, the competent authority has confirmed the marriage by registering the same. The respondent no.1 has succeeded in discharging the burden cast on her to prove that the petitioner is her husband and she is his legally wedded wife. The petitioner has not discharged the onus on him to prove that the respondent no.1 is not his wife. 7 The learned advocate for the petitioner submitted that Mahadev the elder brother of the petitioner got married on 3.12.1995 hence, the petitioner could not have got married to respondent no.1 4 cr­wp­3229­09 prior to the marriage of his elder brother. As respondent no.1 has contended that her marriage with petitioner took place on 1.6.1993, he reiterated that this marriage could not have taken place before the marriage of the elder brother of the petitioner took place on 3.12.1995. In my view, the performance of marriage depends on the facts, circumstances and background of the concerned family. The instances where the marriage of younger brother was performed before the elder brother, are not rare. Therefore, this cannot be a ground to prove that the marriage of petitioner was not performed in the year 1993. 8 The petitioner further contended that at no point of time petitioner got married to respondent no.1 and in fact the petitioner was married to Lata on 12.8.1996. To show that Lata is legally wedded wife of the petitioner, the petitioner has relied upon the voters list (Exh.45) and ration card (Exh.51). However, as far as these two documents are concerned, there is no material on record to show that on what date, the name of Lata was added to ration card and when her name was added to the voters list. It is pertinent to note that marriage of petitioner with Lata has not been registered, whereas the respondent no.1 has produced the marriage registration certificate which shows that she got married to the petitioner on 1.6.1993. 5 cr­wp­3229­09 9 The learned advocate for the petitioner has placed reliance on the evidence of witness Manoj Bhopkar to show that he had got married to Lata on 12.8.1996. It is pertinent to note that Manoj was not available for cross-examination on the ground that he has been transferred. In view of the fact that witness Manoj was not made available for cross-examination, his evidence in his examination in chief cannot be taken into consideration. 10 It is pertinent to note that the petitioner in his say and examination in chief has specifically admitted that he has gone to see the respondent no.1 as his proposed bride but as she was not thought fit, the marriage was not performed. It is also admitted by him that he and the respondent no.1 were having love affair due to frequent visits of petitioner and respondent no.1 to their relatives viz. Nanda and Usha. This admission on the part of petitioner along with the other evidence gives an indication that definitely their marriage was performed in the year 1993 and only to avoid his legal liability, the petitioner has taken a defence of total denial in respect of relationship between him and the respondent no.1. From the evidence on record, it is clear that the respondent is the legally wedded wife of the petitioner, hence she is entitled to claim maintenance. 6 cr­wp­3229­09 11 Thereafter, the learned advocate for the petitioner submitted that the petitioner does not have sufficient income to pay Rs.1500/- per month to respondent no.1. As far as this aspect is concerned, it is an admitted fact that the petitioner owns agricultural land i.e Gat No. 255/1. The petitioner is the sole owner of the land. The income from the land is within the special knowledge of the petitioner and burden lies on the petitioner to prove his exact income by leading cogent evidence to that effect from which he has refrained himself for the best reasons known to him. In the said land, crop like jowar etc is grown which shows that the land is fertile and gives sufficient income to the petitioner. The respondent-wife has brought on record that the petitioner has sufficient income from Gat No. 255/1. When husband alleges no decent income who is able bodied man and he has special knowledge about income, burden rests on him to prove his income, which is not discharged in this case. The words “ sufficient means ” in Section 125 does not signify only a means such as real property or definite employment. If a man is healthy and able bodied he must be held to have sufficient means to support his wife and child. The word “ sufficient means ” includes capacity to earn money and if a man can be shown to be capable of earning money, he has then the means to maintain his wife and child. On the other hand, there is no material to show that the respondent-wife 7 cr­wp­3229­09 can maintain herself. 12 All these aspects have been taken into consideration by the learned J.M.F.C. as well as the learned Sessions Judge. In view of the evidence on record, no case is made out for interference. 13 Petition is rejected. [ SMT. V.K.TAHILRAMANI, J.]