-1- bpk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2692 OF 2006 Satish Shankar Herwade : Applicant v/s Shobha Satish Herwade & ors. : Respondents R.S. Alange i/b Vijay Killedar Advocate for Applicant A.T. Javeri APP for the State Shri Prajakt M. Arjunwadkar Advocate for respondent no.1 Coram : A.S. Oka,J. Date : 16.4.2009 P.C. 1. Heard learned counsel appearing for the petitioner. The petitioner has taken an exception to the order passed by learned Magistrate in favour of first and 2nd respondent by which in exercise of power under section 125 of Code of Criminal Procedure 1973, the petitioner has been directed to pay monthly maintenance of Rs. 1000/- to the first respondent wife and monthly maintenance of Rs. 500/- to the 2nd respondent (minor son of the petitioner) from 30th November,2004. The said order of the Magistrate has been confirmed in revision application filed by the petitioner. 2. Learned counsel appearing for the petitioner -2- submitted that the first respondent had married to the petitioner during subsistence of her earlier marriage with her cousin by the name Ashok Chinmire. It was submitted that when the marriage between the petitioner and the first respondent was solemnised, the marriage between the petitioner and one Sushma was subsisting. He submitted that photographs were produced on record by the petitioner of the marriage ceremony of the petitioner and the said Sushma. He submitted that in the cross examination, the first respondent admitted and identified certain persons in the said photographs. He submitted that later on negatives were sought to be produced of the said photographs but the court did not permit the petitioner to do so. He submitted that the Sessions Court committed an error by finding fault with the petitioner for not examining said Ashok. He submitted that material evidence on record in the form of photographs has been ignored by the courts below. He placed reliance on a decision of the Apex Court in case of Khemchand Om Prakash Sharma vs State of Gujarat and anr. [(2003) 3 Supreme Court Cases 753]. He also placed reliance on another decision of the Apex Court in the case of Smt. Yamunabai Anantrao Adav vs Anantrao Shivram Adhav and anr. (AIR 1988 Supreme Court 644). -3- 3. I have carefully considered the submissions. The courts below have considered the contention raised by the petitioner that the petitioner had married to first respondent during the subsistence of the marriage of first respondent with the said Ashok. The courts below have recorded a finding that the petitioner has not examined any witness to prove that the first respondent had married to Ashok. The learned trial judge as well as Sessions Judge has referred to photographs filed by the petitioner of his alleged first marriage. The said photographs were exhibited. When the said photographs were shown to first respondent in the cross examination, she identified the petitioner and other relatives shown in the photographs. When a specific suggestion was given to first respondent that the bride shown in photograph is first wife of petitioner, she denied the correctness of the said suggestion. It is true that subsequently negatives of said photographs were sought to be produced. However no efforts were made by the petitioner to examine the photographer to prove the photographs. The first contention of the petitioner has been negatived by the courts below on the ground that no independent witness has been examined by the petitioner to prove that the first respondent had -4- married to said Ashok. 4. As far as 2nd contention is concerned the photographs were not proved in the sense that the bride appearing in the said photographs was not proved to be the first wife of the petitioner by examining any independent witness. An attempt was made by the petitioner to adduce evidence on this aspect by examining his brother. However, the Trial Court has noted that in the cross examination certain admissions were given by the brother of the petitioner which showed that the statements made in his evidence regarding his knowledge of the alleged first marriages of both the petitioner and first respondent were nothing but hearsay. 5. While deciding an application u/s 125 of the said Code, summary procedure is required to be adopted. The findings recorded in proceeding u/s 125 of the said Code as regards the status of the parties are always subject to findings which may be recorded by competent Civil Court. 6. Subject to what is observed above no case is made out for interference. Writ petition is rejected. (A.S. Oka,J.)