IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.368 OF 2003 CRIMINAL WRIT PETITION NO.368 OF 2003 CRIMINAL WRIT PETITION NO.368 OF 2003 Shri Sunil S/o. Eknath Jadhav. ...Petitioner V/s. Sou.Anita Sunil Jadhav & Anr. ...Respondents Mr.Umesh Mankapure with Mr.R.V. More for Petitioner. Ms.Kanchan J. Jagtap for Respondent No.1. Mr.D.P. Adsule, A.P.P. for State. CORAM : A.S. AGUIAR, J. CORAM : A.S. AGUIAR, J. CORAM : A.S. AGUIAR, J. DATED : AUGUST 26, 2004. DATED : AUGUST 26, 2004. DATED : AUGUST 26, 2004. P.C. :- P.C. :- P.C. :- 1. Heard learned Advocates for the parties. 2. Rule. By consent, Rule made returnable forthwith. 3. The petitioner who is the husband of the respondent seeks quashing of the order dated 18th December, 2002 passed by the learned Additional Sessions Judge, Malegaon, allowing the revision application of - 2 - the respondent wife from the order of the J.M.F.C., Satana, dated 27th June, 2002 rejecting her application under Section 125 of Cr.P.C. The application for maintenance was rejected by J.M.F.C. primarily on the ground that the previous marriage of the respondent wife had not been dissolved by a competent court and therefore, the subsequent marriage of the petitioner with the respondent was null and void. The Additional Sessions Judge, Malegaon, by a reasoned order dated 18th December, 2002 allowed the revision application and set aside the order of Judicial Magistrate, First Class, Satana and directed the husband to pay Rs.800/- per month to the respondent wife from the date of filing of the original application for maintenance. 4. The main contention of the petitioner is that a fraud has been played upon him in the sense that the respondent wife had not informed him of her previous marriage to one Kamlakar Murlidhar Jagtap. The respondent wife had produced before the J.M.F.C. a declaration of divorce obtained by her from the previous marriage which is in the form of affidavit signed in the - 3 - presence of six witnesses and duly attested before a Notary. However, the learned J.M.F.C. held that a mere declaration of divorce is not sufficient and it could not be said that divorce has been granted to the respondent by the competent court and that the said divorce was not according to law. The learned Sessions Judge has in a detailed order held that it was not competent for the learned Magistrate in an application under Section 125 of Cr.P.C. to determine the status of the parties, the said proceedings are summary in nature and the status of the parties cannot be decided in the said application without recording of evidence. It is pointed out that the husband has not disputed his marriage with the respondent wife which was as per the provisions of Special Marriage Act, 1954. The petitioner had not at any time prior to the application for maintenance under Section 125 questioned the validity of his marriage. The respondent wife in her affidavit filed before this Court stated on oath that no facts were suppressed from the petitioner. The petitioner is a close relative i.e. aunt’s son. Therefore, he was fully aware of the fact that the - 4 - respondent was earlier married to one Kamlakar Murlidhar Jagtap who had given a declaration of divorce dated 12th October, 1998 i.e. before the date of marriage between the petitioner and the respondent which took place on 15th March, 2000. Moreover, the previous husband Kamlakar Jagtap expired sometime in the year 2002. 5. The petitioner has questioned the divorce allegedly granted by the said Jagtap to the respondent wife as according to the petitioner the same is sought to be proved by a mere declaration but no divorce is obtained by the respondent from the previous husband as per law. The burden is upon the respondent wife to prove that her previous marriage to said Jagtap had been properly dissolved and that her subsequent marriage with the petitioner was a valid marriage. 6. Clearly, the learned J.M.F.C. was wrong in proceeding to determine the status of the parties when it is not within the competence of the Magistrate hearing an application under Section 125 of Cr.P.C. to do so. The said proceedings are summary in nature. The - 5 - legal status of the parties cannot be gone into at this stage. The learned Magistrate had only on the basis of the prima facie evidence to decide the said application under Section 125 Cr.P.C. The respondent wife had produced the declaration of dissolution of marriage given by the previous husband. It was not for the Magistrate to have gone into the validity or sufficiency of the said documents which prima facie prove the dissolution of the marriage of the respondent with her first husband Jagtap. 7. The specific case of the petitioner is that respondent had played a fraud upon him by suppressing the fact of her previous marriage to said Jagtap which fact stands rebutted in view of the admitted relation between the petitioner and respondent who are close relatives. They are first cousins. The petitioner was, therefore, fully aware of the previous marriage of the respondent to the said Jagtap. The petitioner was also aware of the declaration given by the previous husband Kamalkar Jagtap on 12th October, 1998 that is, before his marriage to the respondent. The petitioner for the - 6 - first time took up the contention that his marriage to the respondent was nullity in view of the previous marriage to the said Jagtap, only when the respondent wife filed 125 proceedings for maintenance before the J.M.F.C.. 8. It is the case of the respondent wife that the petitioner drove her out of the marital home after two months of their marriage. Since then, she has been residing with her parents and has no issue from the said marriage. The maintenance application was filed sometime in the year 2002. It was only thereafter that the petitioner took up the said defence of a previous marriage of the respondent with the said Jagtap. 9. Clearly, there was no concealment by the respondent of her previous marriage, a fact which petitioner was well aware prior to entering into marriage with respondent. His claim, therefore, of the respondent having played a fraud upon him requires to be rejected outright. Learned Magistrate has embarked upon a discussion of the status of the parties when the same - 7 - was not within his competence. There was prima facie evidence before the Magistrate in the form of declaration by the previous husband rebutting the petitioner’s case of nullity of marriage of the petitioner with respondent on the ground of previous marriage. Therefore, the finding of the learned J.M.F.C. was unwarranted. The trial Court has not even gone into the merits of the petitioner’s application viz. whether she had left the marital home on her own or whether she was driven out by the petitioner as alleged by the respondent wife. The learned Sessions Judge was, therefore, right in setting aside the order of J.M.F.C. 10. In view thereof, we see no reason to interfere with the said order of J.M.F.C. Hence, petition is dismissed and disposed of. Rule discharged. Interim order to stand vacated. (A.S. AGUIAR, J.) (A.S. AGUIAR, J.) (A.S. AGUIAR, J.)