Bombay High CourtRajdhar Shivram Koli vs Mrs Khatubai @ Laxmibai Rajdhar Koli on 21 September, 2016Author:V.K. JadhavBench:V.K. Jadhavcriwp388.05.doc
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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                       BENCH AT AURANGABAD 




                                                                                          
                         CRIMINAL WRIT PETITION NO. 388 OF 2005     




                                                                  
    Rajdhar Shivdas Koli
    age 32 years, occ. Agril.
    r/o Tarhadkasbe, Tq. Shirpur




                                                                 
    Dist. Dhule                                                                 .. PETITIONER


    VERSUS
     




                                                  
    Sau. Khatubai @ Laxmibai Rajdhar Koli
                                 
    r/o Anturli Village,
    Tq. Shirpur
    Dist. Dhule                                                               .. RESPONDENT 
                                
    Mr.  P.S. Patil, advocate for petitioner.
    Mr. M.S. Deshmukh, advocate for respondent.
                                                          =====
      
   



                                                          CORAM :  V.K. JADHAV, J.  
                                                          DATE    :  21st SEPTEMBER,  2016. 
     

    JUDGMENT  :Being aggrieved by the judgment and order passed by the 1 st  Adhoc 

    Additional   Sessions   Judge,   Dhule,   dated   30th  April,   2005,   in   Criminal 





    Revision Application No. 98/2001, original opponent-husband has preferred 

    this criminal writ petition.2.        Brief facts giving rise to the present writ petition are as follows :-Respondent-wife has filed application under section 125 of Code of::: Uploaded on - 23/09/2016                              ::: Downloaded on - 24/09/2016 00:41:14 :::criwp388.05.doc2Criminal Procedure for grant of maintenance against petitioner-husband.  It 




                                                                                       
    has contended in the said application that she is the legally wedded wife 

    and the marriage took place in Gandharva form   4 years prior to filing of 




                                                               
    said   application   for   grant   of   maintenance.     It   is   further   stated   in   the 

    application that after the marriage for initial period, she was treated well 




                                                              
    but   thereafter   she   was   subjected   to   ill-treatment   on   account   of   non-fulfilment of unlawful demand made by petitioner-husband and his family 

    members.  She was subjected to beating and even though she was pregnant, 




                                                
    for want of medical aid, her pregnancy was aborted.  She was finally driven 
                               
    out   from   the   house   by   petitioner-husband.     Since   respondent-wife   is 

    residing with her parents she has no source of income and she is unable to 
                              
    maintain   herself.     It   has   also   stated   in   the   application   that   petitioner-husband is working as driver on tractor and his yearly income is more than 
      

    Rs. 1,00,000/-.   Thus, she is claiming grant of maintenance at the rate of 
   



    Rs.1,500/- per month.Petitioner-husband has strongly resisted said application by filing his 





    say.     Petitioner-husband   has   contended   that   respondent-wife   is   not   his 

    legally wedded wife and she has no any right to claim maintenance from 

    him.  Thus, petitioner-husband denied all the allegations made against him 





    in the said application for grant of maintenance.  Both the parties adduced 

    their   oral   as   well   as   documentary   evidence   in   support   of   their   rival 

    contentions.Learned Judicial Magistrate, First Class, Shirpur, by order dated 28 th::: Uploaded on - 23/09/2016                             ::: Downloaded on - 24/09/2016 00:41:14 :::criwp388.05.doc3February,   2001,   in   Criminal   M.A.   No.   214/1998,   rejected   the   application 




                                                                                      
    however, granted liberty to the applicant to approach the competent Civil 

    Court and get declaration about validity or otherwise of the marriage and 




                                                              
    that, in the said proceeding, she can also claim interim maintenance and 

    also future maintenance from petitioner-husband.Being   aggrieved   by   the   same,   respondent-wife   preferred   Criminal 

    Revision   Application   No.   98/2001   and   the   learned   1st  Adhoc   Additional 




                                               
    Sessions Judge, Dhule, by order dated 30th  April, 2005, partly allowed the 
                               
    revision   application   and   quashed   and   set   aside   the   order   passed   by   the 

    Magistrate thereby directing the present petitioner-husband to pay Rs.300/-per month as maintenance from the date of filing of the revision application 

    to   the   respondent-wife   alongwith   cost   of   Rs.   500/-.     Hence,   this   writ 
      

    petition.3.      Learned counsel for petitioner-husband submits that respondent-wife 

    had filed said application for grant of maintenance with the averments in 





    the   application   itself   that   she   had   performed   marriage   with   petitioner-husband in Gandharva form. Furthermore, respondent-wife has admitted in 

    her   cross-examination   that   her   first   husband   Chabu   Soma   Koli   and   her 





    marriage with said Chabu Koli is still in existence.  Learned counsel admits 

    that there is no legal divorce between respondent-wife and said Chabu Soma 

    Koli.  It is also an admitted fact that one Chotibai is the wife of petitioner-husband  and  said marriage is still subsisting.   Learned counsel submits 

    that the Trial Court has therefore rightly recorded finding in negative and::: Uploaded on - 23/09/2016                            ::: Downloaded on - 24/09/2016 00:41:14 :::criwp388.05.doc4thereby held that the applicant failed to prove that she is legally wedded wife 




                                                                                       
    of petitioner-husband.  Learned counsel submits that during the pendency 

    of  revision,  for  the  first   time,  respondent-wife  has  produced  divorce  deed 




                                                               
    before the Sessions Court and the same is accepted as additional evidence.However, the date 01.07.1998 is mentioned on the said document.  Learned 




                                                              
    counsel submits that on 08.06.1998, respondent-wife has filed application 

    for   grant   of   maintenance   before   the   Magistrate.     Thus,   on   the   date   of 

    application,   marriage   of   respondent-wife   with   said   Chabu   Koli   was 




                                                
    subsisting and therefore, it cannot be said that she is the legally wedded 
                               
    wife of petitioner-husband.   Learned counsel further submits that on the 

    basis   of   evidence   adduced   by   respondent-wife   even   if   it   is   assumed   that 
                              
    petitioner-husband was treating her as wife, the principle of estopple cannot 

    be pressed into service to defeat the provisions ofsection 125of the Code of 
      

    Criminal Procedure and, only  legally wedded wife can  claim maintenance 
   



    from her husband.  Learned counsel also submits that the Trial Court has 

    given opportunity to the respondent-wife to approach Civil Court, however, 

    till   this   date,   applicant-wife   has   not   approached   the   Civil   Court   seeking 





    declaration about validity or otherwise of the marriage.   Learned counsel 

    submits that the approach of the Court is erroneous and is thus liable to be 

    quashed and set aside.4.      Learned   counsel   for   petitioner,   in   order   to   substantiate   his 

    submissions, placed reliance on following three cases :1)      Savitaben Somabhai Bhatiya Vs. State of Gujarat and others 
            Reported in AIR 2005 Supreme Court 1809::: Uploaded on - 23/09/2016                             ::: Downloaded on - 24/09/2016 00:41:14 :::criwp388.05.doc52)      Jaishree   w/o   Premnath   Gavandar   &   another   Vs.   State   of  




                                                                                    
            Maharashtra  and another
            Reported in 2013 BCI(0) 9723)      Yamunabat Anantrao Adhav Vs. Anantrao Shivram Adhav
            Reportedin 1988 AIR(SC) 644.5.      Learned counsel for respondent-wife submits that the voters list Exh.45   is   produced   before   the   Trial   Court   and   it   appears   that   name   of 




                                              
    respondent-wife is entered at Sr. No. 27.  It transpires from said entry in the 
                               
    voters list that respondent is the wife of petitioner-husband.  Furthermore, 

    on the basis of the complaint lodged by respondent-wife, criminal case for 
                              
    offence   punishable   undersection   498Aof   the   Indian   Penal   Code   was 

    instituted against petitioner-husband and his family members and the said 

    case   was   disposed   of   in   terms   of   compromise.     Compromise   terms   are 
      


    produced before the Court vide Exh. 26.   Recitals in the said compromise 
   



    deed clearly indicate that respondent is the legally wedded wife of petitioner-husband and he had accepted her as his wife.  Furthermore, divorce deed is 





    also  produced on  record  and it  appears from  the contents of the divorce 

    deed   that   respondent-wife   obtained   divorce   from   her   former   husband   on 

    01.07.1998 i.e. when Criminal M.A. No. 214/1998 was pending before the 





    Magistrate.  Learned counsel submits that in the facts and circumstances of 

    the  case, learned 1st  Adhoc Additional Sessions Judge, Dhule has  rightly 

    taken a view and accordingly granted maintenance at the rate of Rs.300/-per   month   to   respondent-wife.     Learned   counsel   submits   that   no 

    interference is required and the writ petition is liable to be dismissed.::: Uploaded on - 23/09/2016                          ::: Downloaded on - 24/09/2016 00:41:14 :::criwp388.05.doc66.         Respondent-wife has  filed Criminal M.A. No. 214/1998 for grant  of 




                                                                                          
    maintenance before the Magistrate with averment in the application itself 

    that   she   had   performed   marriage   in  Gandharva  form   with   petitioner-husband.  Needless to say here that Gandharva form of marriage is nothing 

    but garlanding each other without performing any rite and rituals.  As persection 7of the Hindu Marriage Act, 1955, Hindu marriage is solemnised in 

    accordance   with   the   customary   rites   and   ceremonies   of   either   parties 

    thereto   and,   in   view   of   sub-section   2ofsection   7,   when   such   rites   and 




                                                   
    ceremonies   include   the  Saptapadi,   the   marriage   becomes   complete   and 
                                  
    binding when the seventh step is taken.   It is not the case of respondent-wife   that   it   is   the   custom   in   their   community   to   perform   marriage   in 
                                 
    Gandharva  form alone.   On the other hand, the marriage is performed in 

    Gandharva  form when the earlier marriage is subsisting.   On the basis of 
      


    other evidence i.e. voters list and complaint filed undersection 498Aof the 
   



    Indian Penal Code, at the most it can be said that petitioner-husband was 

    treating the respondent as his wife.  However, the scope of wife for the sake 

    of provisions ofsection 125of the Code of Criminal Procedure cannot be 





    enlarged to include unlawful marriage.7.In case ofSavitaben Somabhai Bhatiya Vs. State of Gujarat and othersreported in AIR 2005 Supreme Court 1809, in paragraphs 16 and 17 the 

    Hon'ble Supreme court has made following observations :16.     But   it   does   not   further   the   case   of   the 
                      appellant in the instant case.  Even if it is accepted 
                      as stated by learned counsel for the appellant that 
                      husband   was  treating   her  as  his  wife  it   is  really::: Uploaded on - 23/09/2016                             ::: Downloaded on - 24/09/2016 00:41:14 :::criwp388.05.doc7inconsequential.     It   is   the   intention   of   the 
                   legislature which is relevant and not the attitude of 




                                                                                       
                   the party.17.      In   Smt.   Yamunabai's   case   (supra)   plea 




                                                               
                   similar   to   the   one   advanced   in   the   present   case 
                   that   the   appellant   was   not   informed   about   the 
                   respondent's   earlier   marriage   when   she   married 
                   him was held to be of no avail.   The principle of 
                   estoppel  cannot  be  pressed  into  service   to  defeat 




                                                              
                   the provision of Section 125 of the Code.8.      In view of above discussion and in the light of the ration laid down by 




                                                       
    the   Supreme   Court,   the   judgment   and   order   passed   by   the   learned   1 st 
                                
    Adhoc   Additional   Sessions   Judge,   Dhule   is   liable   to   be   quashed   and   set 

    aside.  I find that the approach of the Magistrate is proper, correct, legal and 
                               
    more   logical.     Learned   Magistrate  has   granted   opportunity   to   the  wife   to 

    approach  the  competent  Civil  Court  and get  declaration  about  validity or 

    otherwise   of   the   marriage.     Accordingly   I   proceed   to   pass   the   following 
      


    order :ORDER1.         Criminal Writ Petition is hereby allowed.2.         Judgment and order passed by the 1 st Adhoc 
                   Additional   Sessions   Judge,   Dhule   dated   30 th  April, 





                   2005, in Criminal Application No. 98/2001 is hereby 
                   quashed and set aside.3.         Judgment  and order passed by the Judicial 
                   Magistrate First Class, Shirpur, dated 28 th February, 
                   2001   in   Criminal   M.A.   No.   214/1998   stands 
                   confirmed.::: Uploaded on - 23/09/2016                             ::: Downloaded on - 24/09/2016 00:41:14 :::criwp388.05.doc84.        Rule is made absolute in above terms.   Writ 




                                                                                                
                      petition is accordingly disposed of.( V. K. JADHAV )
                                                                                              JUDGE

    dyb::: Uploaded on - 23/09/2016                                 ::: Downloaded on - 24/09/2016 00:41:14 :::