vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.257 OF 2008 CRIMINAL REVISION APPLICATION NO.257 OF 2008 CRIMINAL REVISION APPLICATION NO.257 OF 2008 Dagadabai Baban Takalkar ... Applicant V/s. Shri Baban Ranguji Takalkar ... Respondent Mr.Dilip Bodake for Applicant Mr.Vilas B. Tapkir for Resp. No.1 Ms.P.P. Shinde, APP, for Respondent-State CORAM: A.R. JOSHI, J. A.R. JOSHI, J. A.R. JOSHI, J. DATED: APRIL 1, 2009 APRIL 1, 2009 APRIL 1, 2009 P.C.: P.C.: P.C.: . Heard rival submissions for some time. The present revision is preferred by the original applicant wife challenging the order passed by the Sessions Judge, Pune dated 6.3.2008 by which the revision filed by the present respondent-husband was allowed and the order impugned in the said revision petition i.e. the order passed by the trial Magistrate awarding maintainance of Rs.400 per month to the applicant wife as per the provisions of section 125 of the Cr.P.C. was set aside. Being aggrieved by such order in the revision application of the husband, the present criminal revision is preferred. 2. Earlier, on various grounds an application u/s 125 of the Cr.P.C. came to be filed by the present petitioner wife and it was allowed after hearing and : 2 : recording of evidence on both the sides. The main objection then raised in the said petition by the husband that the applicant was not his legally wedded wife as he had earlier married with one Shantabai in the year 1960. The trial Magistrate has dealt with the evidence led on behalf of the applicant and came to the conclusion that the defence as to the applicant not legally wedded wife shall not sustain. Allowing the said application u/s 125 of the Cr.P.C., the trial Magistrate awarded monthly maintainance of Rs.400 to the wife. 3. The said order of trial Magistrate was challenged in the Criminal Revision No.310 of 2006 by the husband. Admittedly, the only point raised before the Revisional Court on behalf of the husband was that the original applicant was not his legally wedded wife and as such not entitled for any maintainance. It appears that during the course of arguments before the Sessions Judge, Pune, the judgment and order copy of same civil suit was produced without there being any opportunity for the original applicant, then respondent, to counter the contents inasmuch as such judgment and order according to the Sessions Court was held as the proof that prior to alleged marriage of the applicant with the revision petitioner in 1963, he had earlier married one Shantabai in the year 1960. It appears that : 3 : the Sessions Court was influenced by the contents of the said judgment and order in which admittedly the original applicant, the present petitioner, was not the party and in fact such suit was filed by the son of original applicant one Shri Bharat for partition of the property of his father. In the opinion of this court, the view taken by the Sessions Court, Pune that whatever averments made in the civil suit by the son of the applicant are gospel truth and as such it was erroneous on the part of the Sessions Judge to come to the conclusion that there was in fact a proof that the original applicant was not legally wedded wife. It is the admitted position that there was only oral denial by the husband as to not contracting any marriage with the original applicant. 4. As against this, there were three witnesses examined by the wife and considering the evidential value of the said witnesses and considering the standard of proof required to establish the marital relations and marriage between the parties, the trial Magistrate accepted the plea of the applicant and rejected the submission of the husband that the applicant was not his legally wedded wife. At the cost of the repetition it must be said that there was no any opportunity for the applicant in criminal revision before the Sessions Court to rebutt what was brought before the Sessions Court and : 4 : that also at the time of the arguments by producing certified copy of the judgment and decree of the Civil Court. 5. Apart from the above, it is a factual position that one Bharat, son of the original applicant had used the name of his husband i.e. the present Respondent No.1 as his father throughout in all the records and the said Bharat is of middle age now i.e. more than 40 years. Such conduct of the said Bharat was never objected to by Respondent No.1 and in fact this has also weighed with the learned JMFC while awarding maintainance in favour of the original applicant. 6. It must be said that the Sessions Court, Pune had fallen in an error in accepting the submission of the present respondent No.1, then revision petitioner, and opining that the original applicant was not legally wedded wife of the said revision applicant. 7. In view of the above, it is a matter in which the present revision application is required to be allowed and the order of the first revisional Court is required to be set aside maintaining the order of the JMFC. Hence, the present criminal application is allowed with the following order: : 5 : O R D E R i) The Criminal Revision Application No.257 of 2008 is allowed. ii) The order of the Sessions Judge, Pune in Criminal Application No.310 of 2006 is set aside. iii) The order of the JMFC is revived and shall be implemented. (A.R. JOSHI, J.)