[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL W.P.NO.1017 OF 2007 Appa Bapu Kachare ..Petitioner Vs. Kalavati Appa Kachare and Ors. ..Respondents ... Mr.Mandar Limaye with Mr.Vaibhav Patankar Advocate for Petitioner Mr.J.P.Yagnik APP for Respondent-State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : MARCH 18, 2008 DATE : MARCH 18, 2008 DATE : MARCH 18, 2008 IN CHAMBER AT 2.40 P.M. IN CHAMBER AT 2.40 P.M. IN CHAMBER AT 2.40 P.M. P.C. P.C. P.C. 1. Heard the learned advocate for the Petitioner. 2. By judgment and order dated 19th June, 2006, the learned Judicial Magistrate F.C. Atpadi allowed the application for maintenance under Section 125 of Cr.P.C. preferred by the Respondent No.1-wife and Respondent No.2-daughter against the present Petitioner. By the said judgment and order, the maintenance of Rs.1200/- per month was granted to the Respondent No.1-wife and Rs.800/- per month was granted to the Respondent No.2-daughter. Being aggrieved by the said [-2-] judgment and order, the Petitioner preferred Criminal Revision Application before the Sessions Court at Sangli. By judgment and order dated 17th January, 2007, the learned Ad-hoc Additional Sessions Judge-I, Sangli, dismissed the said Revision Application. Being aggrieved by the judgment and order dated 19th June, 2006 passed by the learned JMFC Atpadi and judgment and order dated 17th January, 2007 passed by the learned Additional Sessions Judge, this Writ Petition has been preferred. 3. The facts briefly stated are that: . Respondent No.1 had filed an application under Section 125 of Cr.P.C. for monthly maintenance for herself and her daughter against the present Petitioner. According to Respondent No.1, she is legally wedded wife of the Petitioner and her marriage was performed with the Petitioner on 26th June, 1977 at Banpure according to Hindu Vedic Rites and custom of the community. She was unable to conceive, hence, her husband started to subject her to harassment. Thereafter in the year 1985, her husband (Petitioner) performed second marriage [-3-] with one Shobha resident of Kharsundi. Thereafter, he started residing along with Shobha at Mumbai. Ultimately in June 1999, her husband beat her and drove her out of the house. She issued notice to her husband, however, she did not receive any reply. Thereafter, she preferred Criminal Misc. Application No.51 of 1999 for maintenance. However, there was compromise in the said application on 8th June, 2000. Thereafter, she went to co-habit in the house with her husband. She cohabited with the Petitioner and at the instance of the second wife Shobha, he again started harassing, illtreating and beating the Respondent No.1-wife. Ultimately she was driven out of the house in April, 2005. Hence, she prayed for maintenance at the rate of Rs.1500/- per month. 4. The petitioner as well as Respondent No.1 wife adduced oral as well as documentary evidence. After carefully scrutinising the same, the learned Magistrate came to the conclusion that the Respondent No.1-wife is legally wedded wife of the Opponent i.e. the present Petitioner and that he has refused and neglected to maintain his wife and daughter. The learned Magistrate has also held [-4-] that the wife and the child have no source of income whereas the husband had got sufficient means to provide maintenance to the applicants i.e. present Respondent Nos.1 and 2. Ultimately, the trial Court allowed the application and awarded maintenance of Rs.1200/- per month to the Respondent No.1-wife and Rs.800/- per month to the Respondent No.2-daughter. 5. The learned advocate for the Petitioner has stated that the Respondent Nos.1 and 2 are not entitled to any maintenance. He submitted that the Petitioner was married to one Shobha and the marriage of the present Petitioner with Shobha took place about 33 years ago. The case of the Petitioner is that at no point of time, he was married to Respondent No.1 whereas, on the other hand, he was married to Shobha prior to about 33 years. Thus, the learned advocate for the Petitioner contended that the Respondent No.1 is not legally wedded wife of the Petitioner and hence, she and her daughter were not entitled to any maintenance. In support of his contention, he has placed reliance on the admission of the Respondent No.1-wife in her cross-examination that [-5-] the marriage of Shobha was performed with the opponent (Petitioner) before 33 years. He submitted that evidence of Shobha also supports the claim of the Petitioner that Shobha was married to him about 33 years ago. Thus, the claim of the Petitioner is that Respondent No.1 is not his legally wedded wife. On the contrary, it is his defence that he has no concern with her or with Respondent No.2. 6. On scrutinizing the oral as well as documentary evidence, it is seen that the Respondent No.1 has stated in detail regarding performance of her marriage with the opponent (Petitioner). She has deposed in detail about the ceremonies which were performed at the time of their marriage. She also deposed in respect of performing second marriage of opponent (Petitioner) with Shobha. There is no documentary evidence to support the claim of the Petitioner that he was married to Shobha before 33 years. On the other hand, Respondent No.1-wife has adduced oral as well as documentary evidence showing that she is the legally wedded wife of the present Petitioner. She has produced on record the extract of the registration of her marriage with [-6-] the Petitioner in the register maintained by the Gram Panchayat. The said extract is at Exhibit-22. This extract shows that the marriage of the Petitioner and the Respondent No.1 was performed on 26th June, 1977. Besides this, Exhibit-17 which is the extract of the Electoral Roll shows that name of Respondent No.1 is appearing as wife of the opponent (Petitioner) at first place and name of Shobha is appearing at second place. The case of the Petitioner is that he has no concern at all with Respondent No.1, if that was so, how the name of the Respondent No.1 would appear in the Electoral Roll as residing in the house of the Petitioner at Banpure. 7. The Petitioner has failed to produce any documentary evidence to show that his marriage was performed with Shobha 33 years ago. His bald averment and that of Shobha, is not sufficient to prove that their marriage had taken place 33 years back. If we go by the claim of the Petitioner that his marriage with Shobha had taken place 33 years back, it means that the said marriage would have taken place in the year 1974 and the birth of some children to Shobha would have taken place prior to [-7-] 1977. However, the documents on record in respect of the birth of the children of the Petitioner and Shobha show that they were born only after 1986. In such case, it is difficult to believe that the marriage of the Petitioner with Shobha took place 33 years back. 8. As far as marriage between the Petitioner and the Respondent No.1-wife is concerned, it is seen that the said marriage has been registered. The extract of registration shows that the marriage was performed on 26th June, 1977. Besides this Electoral Roll and the other facts discussed above, show that the Respondent No.1 was the wife of the Petitioner. Another reason to disbelieve the averment that the marriage of the Petitioner and Shobha took place 33 years back is that the Petitioner has admitted that earlier application was filed by the present Respondent-wife for maintenance and that application was compromised between the Petitioner and Respondent-wife. The fact that the application for maintenance was filed by Respondent-wife which came to be compromised by the present Petitioner with her shows that the Respondent No.1 is the legally wedded wife of the [-8-] opponent (Petitioner). 9. The learned advocate for the Petitioner has laid much stress upon the stray admission given by the Respondent-wife in respect of the marriage of the Petitioner and Shobha wherein she has admitted that marriage of the Petitioner and Shobha took place about 33 years ago. In my opinion, undue importance cannot be given to the stray admission. In my view, the entire evidence has to be taken into consideration. It is important to note that the Respondent-wife is an illiterate woman. Respondent-wife being an illiterate woman, possibility cannot be ruled out that she did not understand the question that was asked and hence, she may have given an answer to that effect. 10. The case of the Petitioner is that he was married to one Shobha 33 years ago. In such case, the burden would be upon the Petitioner to bring cogent and sufficient evidence on record to show that his marriage with Shobha was performed 33 years back. But there is no such cogent and reliable evidence adduced by the Petitioner. In such circumstances, the learned Sessions Judge has [-9-] rightly observed that the Petitioner cannot take advantage of the stray admission given by the Respondent-wife. From the material on record, it appears that Shobha is the second wife of the Petitioner and not the first wife. The Courts below have rightly come to the conclusion that Respondent No.1 is the first wife of the Opponent (Petitioner). 11. It is also pertinent to note that the Respondent-wife had initiated Misc. Application No.51 of 1999 for maintenance. At that time, the Respondent-wife as well as the present Petitioner by joint pursis vide Exhibit-39 applied to the Court that applicant (Respondent-wife) had gone to the house of opponent i.e. Petitioner for cohabitation and therefore, it was requested to dispose of the application. Accordingly, the said application came to be disposed of. This falsifies the stand taken by the Petitioner that he has nothing to do with the Respondent-wife. In fact Exhibit-39 as well as the record of Misc. Application No.51 of 1999 shows that there was compromise between the present Petitioner and the Respondent-wife and pursuant to the said compromise [-10-] the Respondent-wife went to the house of Petitioner for cohabitation. This clearly shows that Respondent was the wife of the Petitioner. It is important to note that when the Respondent-wife was residing in the house of the Petitioner, at that time, she conceived and thereafter gave birth to Respondent No.2. The Birth Certificate which is on record vide Exhibit-40 goes to show that Respondent No.2 was born on 27th July, 2003. Looking to the material on record, I find no merit in the contentions raised by the learned Advocate for the Petitioner that Respondent No.1 is not legally wedded wife of the Petitioner. In fact, the evidence on record clearly shows that Respondent-wife is the legally wedded wife of the Petitioner and that her marriage took place prior to the marriage of the Petitioner with Shobha. 12. The learned Advocate for the Petitioner has placed reliance on the decision of the Single Judge of the Andhra Pradesh High Court in the case of Buddepu Khogayya Vs. Buddepu Kamalu and Anr. Buddepu Khogayya Vs. Buddepu Kamalu and Anr. Buddepu Khogayya Vs. Buddepu Kamalu and Anr. reported in I (2007) DMC 451 I (2007) DMC 451 I (2007) DMC 451. He submitted that where there was an earlier living spouse at the time of alleged marriage, the second marriage would [-11-] be void and in such case, the second wife cannot be treated as wife as per the provisions of Section 125 of Cr.P.C. hence, she is not entitled to any maintenance. However, the said decision would not apply to the facts of the present case as I have reached the conclusion that the Respondent No.1-wife is the first wife of the Petitioner and infact, assuming that Shobha is the wife of the Petitioner, she is the second wife of the Petitioner. Hence, this decision would be of no help to the Petitioner. 13. The evidence on record also shows that there was illtreatment and harassment to the Respondent-wife by the Petitioner-husband as well as the second wife Shobha. It is also pertinent to note that Petitioner had straightway denied that he had any relations with Respondent No.1. He has denied that Respondent No.1 was his wife or that he had anything to do with her. According to me, this is sufficient to come to the conclusion that the Petitioner has refused and neglected to maintain the Respondent-wife. From the evidence on record, it is seen that the Petitioner drove Respondent-wife out of the matrimonial home. The [-12-] evidence clearly shows that the Respondent-wife has no source of income to maintain herself and her daughter. On the other hand, the salary of the Petitioner is over 7000/- per month. 14. The Courts below have observed that the husband had got agricultural land at his native place. When the evidence was led before the trial Court, the 7x12 extracts were produced on record vide Exhibit-15 and 16. However, the learned Advocate for the Petitioner has stated that the name of the Petitioner does not figure in the 7x12 extracts. In support thereof, he has produced the 7x12 extract dated 25.2.2008 and he has pointed out that the name of the Petitioner does not figure in the said 7x12 extract but names of father of Petitioner i.e. Bapu Pandu Kachare, uncle of the Petitioner i.e. Namdeo Pandu Kachare and one Keru Kachru Kachare are appearing in the 7x12 extract. Even assuming that the name of the Petitioner does not figure in this 7x12 extract, the salary of the Petitioner is enough to grant maintenance at the rate of Rs.1200/- per month to the Respondent No.1-wife and Rs.800/- per month to the Respondent No.2-daughter. [-13-] 15. Looking to the above facts, no case is made out for interference. Writ Petition is rejected. [SMT.V.K.TAHILRAMANI, J.]