1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.961 OF 1997 Suman Nivrutti Satav .. Petitioner Versus Nivrutti Dattu Satav & Anr. .. Respondents Ms.Revati Mohite-Dere for the petitioner. Mr.N.C.Walimbe for the respondent No.1. Ms.A.T.Jhaveri, A.P.P for the State. CORAM : A.S.OKA, J. DATE ON WHICH SUBMISSION ARE HEARD : 02nd July 2009. DATE ON WHICH JUDGMENT IS PRONOUNCED: 26th August 2009. ORAL JUDGMENT: . This writ petition under Article 227 of the Constitution of India arises out of a petition filed by the petitioner-wife under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). 2. The case made out by the petitioner in the petition filed in the year 1991 is that the marriage between the petitioner and the 1st respondent was 2 solemnised 10 years prior to filing of the petition under section 125 of the said Code. The 2nd applicant in the petition under section 125 is the minor daughter of the petitioner and the respondent-husband. It is alleged that five to six months after the marriage, the respondent started illtreating the petitioner. It is alleged that the respondent, one year after the marriage married to one Surekha and a son and daughter has been born to the said Surekha. It is alleged that from 05th September 1991 the 1st respondent has neglected to maintain the petitioner. It is alleged that on 05th September 1991, the respondent after assaulting the petitioner drove her out of the house. It was alleged in the application filed by the petitioner that the 1st respondent was employed with Maharashtra State Electricity Board and was drawing a salary of Rs.3000/- per month and was drawing Rs.2,00,000/- per year by way of agricultural income. The monthly allowance at the rate of Rs.500/- per month for the petitioner and monthly allowance of Rs.400/- per month for the daughter was prayed for. The 1st respondent filed a reply opposing the petition by contending that there was no lawful marriage between the petitioner and himself and infact he had 3 married to the said Surekha 10 to 12 years prior to institution of the petition under section 125. 3. The learned Magistrate held that the petitioner has failed to establish that she is the lawfully wedded wife of the 1st respondent. The learned Magistrate, however, directed the 1st respondent to pay maintenance at the rate of Rs.200/- per month to the daughter. The learned Judge referred to the birth extracts of the daughter showing that the respondent was her father. A revision application preferred by the petitioner against the said order was allowed and maintenance payable to the 2nd applicant daughter was enhanced to Rs.400/- per month. 4. The learned counsel appearing for the petitioner in support of the petition contended that there was sufficient evidence on record to show that the petitioner had married to the 1st respondent. She submitted that considering the scope of the petition under section 125 of the said Code, it was not necessary for the petitioner to adduce strict proof of the performance of marriage. She submitted that there was more than sufficient evidence on record to show that the petitioner and the 1st respondent were staying 4 together as husband and wife for sufficiently long time. She submitted that the 1st respondent had not strictly proved the marriage between himself and the said Surekha. The learned counsel appearing for the petitioner placed reliance on the decisions of the Apex Court in the cases of Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit and another (AIR 1999 Supreme Court 3348) and Vimala (K) Vs. Veerswamy (K) [(1991) 2 Supreme Court Cases 375]. 5. The learned counsel appearing for the 1st respondent-husband submitted that there are concurrent findings recorded by the Courts below on appreciation of evidence that the petitioner has failed to prove her alleged marriage with the 1st respondent. He submitted that in writ jurisdiction no interference can be made with the concurrent findings recorded by the Courts below. He submitted that there is no legal evidence adduced by the petitioner to show the existence of marriage. He submitted that not only that the petitioner failed to prove her marriage with the 1st respondent but the 1st respondent has established his marriage with Surekha. He placed reliance on the decision of the Apex Court in the case of Savitaben 5 Somabhai Bhatiya Vs. State of Gujarat & Ors (AIR 2005 Supreme Court 1809). He invited my attention to the evidence of the witnesses and submitted that there is no scope to interfere in this writ petition. 6. I have given careful consideration to the submissions. A remedy under section 125 of the said Code is in the nature of a summary remedy. The object of section 125 of the said Code is to make available a speedy remedy to a wife to obtain an order of maintenance. The findings recorded in proceedings under section 125 of the said Code as regards existence of marriage and the status of parties are never final in the sense that the same are always subject to decree passed by the competent Civil Court. On the basis of a decree of declaration subsequently passed by the competent Civil Court, the parties can always apply by taking recourse to section 127 of the said Code for setting aside and/or variation of the order granting maintenance. 7. In the case of Dwarikada Prasad Satpathy (supra), the Apex Court observed that the standard of proof of marriage in proceedings under section 125 of the said 6 Code is not as strict as is required for trial of an offence under section 494 of the Indian Penal Code. The Apex Court held that if the applicant in application under section 125 of the said Code succeeds in showing that she had lived together with the respondent as wife and husband the Court can presume that they are legally wedded spouses. The Apex Court further held that from the evidence which is adduced by the parties, if the learned Magistrate is prima facie satisfied with regard to performance of marriage, in the proceedings under section 125 of the said Code, strict proof of performance of essential rites is not required. In the case of Vimala (supra), the Apex Court observed that when in a petition under section 125 of the said Code husband takes up a contention that his marriage with the applicant is not valid as he had validly married to another woman prior to his marriage with the applicant, in such a case it is for the respondent-husband to lead evidence for strictly proving his earlier marriage. 8. Perusal of the impugned judgments and orders shows that Courts below have proceeded on the footing that it was necessary for the petitioner-wife to strictly 7 prove existence of the marriage by establishing performance of religious rites. The Courts below have proceeded on an erroneous footing that the petitioner was duty bound to strictly establish her marriage. As the entire approach of the Courts below is erroneous, it will be necessary to refer to the evidence adduced by the parties. 9. The petitioner stated in her deposition that the marriage was solemnised in the year 1980 at village Satavwadi in the house of one Dada Jagtap. She stated that the said Dada Jagtap is a cousin of the 1st respondent. He stated that the marriage was performed according to the Hindu religious rites and religious ceremonies of Saptapadi and Hom were performed. She stated that she cohabited with the 1st respondent at village Phursungi. She stated that she gave a birth to three children in the year 1981, 1984 and 1987 respectively. According to her, the first two children died after delivery. She stated that the third child (2nd applicant in the application under section 125 of the said Code) was born on 05th November 1987. She stated that during subsistence of her marriage with the 1st respondent, there was a second marriage 8 solemnised of the 1st respondent with one Surekha, a daughter of Sadhu Tilekar. She stated that she was not treated well by the 1st respondent and finally on 05th September 1991 she was assaulted and driven out alongwith her daughter by the 1st respondent. She deposed before the Court that her daughter was treated in Sasoon General hospital at Pune. She produced the papers relating to treatment of her daughter and stated that the necessary charges were paid by the 1st respondent. She was cross-examined by the advocate for the 1st respondent. In the cross-examination she stated that she was unable to remember the dates of births and deaths of her two children and she was not aware whether the births and deaths have been recorded. The petitioner examined one Laxman Anaji Chavan who was the police patil of the village. He deposed that he was present in the house of Dada Jagtap in the year 1980 when marriage between the petitioner and the 1st respondent was solemnised. He proved in evidence a certificate issued by him to that effect. He stated that as he was the classmate of the respondent, he attended the marriage. However, in the cross- examination he could not disclose the nature of the house of the said Dada Jagtap and date and time of the 9 marriage. The third witness examined by the petitioner is one Dinkar Harpale who was the Sarpanch of the village. According to him he attended marriage between the petitioner and 1st respondent in the house of Dada Jagtap. In the cross-examination he could not state whether the house of the Dada Jagtap was single storeyed or double storeyed. He was unable to disclose the date and day of the marriage. The petitioner also examined her father who also deposed about the marriage solemnised in the year 1980 and performance of religious ceremonies. When the said witness was examined in Court, the counsel for the 1st respondent was absent and therefore cross-examination of the witness was closed. Subsequently, the witness expired. 10. It must be stated here that all the three witnesses examined by the petitioner and especially the police patil and Sarpanch deposed that the petitioner and the 1st respondent cohabited at Phursungi for 8 to 9 years and they were living as wife and husband. The witnesses have stated that a daughter was born to the petitioner from the said wedlock. There is no cross-examination made of the said witnesses on the categorical statements that the 10 petitioner and the 1st respondent cohabited at Phursungi for 8 to 9 years and the 2nd applicant in the original petition under section 125 is their daughter. The entire cross-examination is on the factum of marriage. 11. The 1st respondent examined himself and he came out with a case that on 16th May 1978 he married to one Surekha. He examined a witness Namdeo who stated that marriage between the 1st respondent and Surekha was performed in the year 1978. The said witness denied the correctness of the suggestion that the marriage between the 1st respondent and Surekha was solemnised in the year 1982. 12. It must be stated here that as far as the trial Court is concerned, it has been held that the daughter of the petitioner is entitled to receive maintenance. There is a categorical finding that the 1st respondent is the father of the said daughter. Therefore, the learned Magistrate proceeded to award maintenance to the minor child. The said order was not challenged by the 1st respondent. 13. As stated earlier, there is evidence of the police 11 patil and Sarpanch of the village that the petitioner and the 1st respondent cohabited at village Phursungi for 8 to 9 years as husband and wife and the 1st respondent is the father of the girl. As against this, the 1st respondent has not examined his wife Surekha who allegedly got married with the 1st respondent in the year 1978. The best person to depose about the alleged marriage was Surekha who has not been examined. The petitioner is not disputing the marriage between the 1st respondent and Surekha and her case is that the said marriage was solemnised after her marriage with the 1st respondent. Thus, the unchallenged evidence on record is that the petitioner and the 1st respondent stayed together as husband and wife for 8 to 9 years at Phursungi and the 1st respondent is the father of the daughter born to the petitioner. In view of the law laid down by the Apex Court this was sufficient evidence of marriage for the purposes of deciding a petition under section 125 of the said Code. To prove the case that the said marriage was illegal, the 1st respondent ought to have adduced evidence of Surekha to show that his marriage with Surekha was performed in the year 1987. Therefore, the Courts below ought to have held that 12 the petitioner was the wife of the 1st respondent. The 1st respondent has went to the extent of disputing the status of the petitioner as his wife. Therefore, it is obvious that the 1st respondent has failed and neglected to maintain the petitioner. Therefore, even the petitioner was entitled to maintenance. 14. The Sessions Court found that in the year 1991 salary payable to the 1st respondent was Rs.3000/- per month which is also a finding recorded by the learned Magistrate. The maintenance payable to the daughter has been enhanced by the Sessions Court to Rs.400/- per month. The petitioner had prayed for maintenance at the rate of Rs.500/- per month. Considering the fact that the income of the 1st respondent was Rs. 3000/- per month in the year 1991, the maintenance amount of Rs.500/- per month claimed by the petitioner is reasonable. The impugned judgments and orders, therefore, need modification. 15. The respondent No.1 will have to pay maintenance to the petitioner at the rate of Rs.500/- per month from the date of filing of the original application i.e 01st November 1991. Sufficiently longer time will 13 have to be granted to deposit the arrears. 16. Hence, I pass the following order: : O R D E R : (a) The impugned judgments and orders are modified to the extent to which claim for maintenance of the petitioner has been dismissed. (b) The 1st respondent is directed to pay monthly allowance at the rate of Rs.500/- per month to the petitioner with effect from 01st November 1991. (c) Time of six months is granted to pay the arrears payable up to 31st August 2009. (d) The respondent No.1 shall start paying and/or depositing the monthly maintenance with the trial Court on or before 10th day of every calendar month. (e) The Criminal Writ Petition is allowed in above terms. (A.S.OKA,J)